I (A Child)  EWCA Civ 319
Application by parents for permission to appeal, with appeal to follow, against refusal to set aside a judgment concerning findings that the mother of a child by a previous father had injured her first eldest daughter. Application granted but appeal dismissed.
The original judgment had arisen from care proceedings in which there was a finding that the child had suffered serious, non-accidental brain injuries, which was not challenged, and that the mother was the only possible perpetrator, ruling out a babysitter. The mother had subsequently given birth, by a new partner, to another child, who was removed at two days old. She had also been subject to criminal proceedings of occasioning grievous bodily harm in relation to the injuries to the eldest child; in those proceedings medical opinion differing from that in the care proceedings caused the charges to be dropped and a renewed possibility that the babysitter could be a perpetrator. The mother therefore sought to reopen the factual findings. That application was refused and, at a subsequent hearing, care and placement orders were granted in respect of the younger child.
In this application, counsel for the mother submitted that: i) the judge had trespassed on matters for the judge to consider if a re-hearing was ordered and ii) following Re K, the judge had not sufficiently considered the principle that children removed from their biological family should have the best knowledge available of what happened to them in earlier life. Thorpe LJ rejects the first submission as the best the mother could have hoped for was that either she or the babysitter would be considered possible perpetrators. He also rejects the second submission as the discretionary decision was not open to criticism and the judge had recognised that the issue of the contradictory medical evidence would need to be explained to the children in the future. Thorpe LJ also notes counsel for the guardian's suggestion that
"a revision of the fact-finding conclusion that is not sufficiently significant as to merit a retrial but which is sufficiently significant to demand some revision of the detailed conclusion of the fact-finding trial should be flagged up to avoid the possibility that it will simply get lost in the mists with the passage of years."
Such fresh evidence could be appended to the judgment refusing any such application.
Case No: B4/2009/2496
Neutral Citation Number:  EWCA Civ 319
IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HER HONOUR JUDGE LAURA HARRIS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Wednesday 17th February 2010
LORD JUSTICE THORPE
LADY JUSTICE ARDEN
LORD JUSTICE PITCHFORD
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IN THE MATTER OF I (A Child)
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( DAR Transcript of
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Miss Ashley Thain ( instructed by John Fowlers LLP) appeared on behalf of the Appellant mother.
Mr Michael Bailey ( instructed by HP Law Limited) appeared on behalf of the First Respondent, the local authority.
Mr Peter Horrocks appeared on behalf of the Second Respondent, the Children's Guardian.
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(As Approved by the Court)
Lord Justice Thorpe:
1. This is an application for permission to appeal, with appeal to follow if permission granted, directed in by my Lord Ward LJ as recently as 8 February. The application that he had before him on paper was filed on 9 November and sought permission to appeal the judgment of HHJ Laura Harris sitting in the Chelmsford County Court on 16 October 2009.
2. The application before HHJ Harris was an application brought by young parents for the setting aside of a judgment delivered in the same court by HHJ Ludlow on 3 December 2007, in which she made very grave findings of fact against a young mother, the full detail of which it is unnecessary for me to record at this stage. The application failed in front of HHJ Harris and in granting permission Ward LJ, noticing that the mother had a very steep hill to climb, nevertheless felt that her application raised an interesting point that warranted the attention of the court.
3. The circumstances that underlie the judgment of HHJ Harris are clearly recorded in her opening paragraphs. The applicant mother had given birth to a little girl named Abigail who, in the course of the early months of her life, suffered extremely serious injuries which were fully investigated by the highest level of expertise. The injuries were, most seriously, a haemorrhaging of the brain, almost certainly a shaking injury. In conjunction there were retinal haemorrhages and six fractures in addition of upper and lower limbs.
4. There were inevitably public law care proceedings, the first stage of which was the fact-finding hearing conducted by HHJ Ludlow. There was no challenge that these were all non accidental injuries. The only issue before HHJ Ludlow to decide was whether the potential perpetrators were the mother and/or a man called T, who had been allowed to babysit. The clear finding of HHJ Ludlow was that the mother or Mr T were equally possible perpetrators of all the injuries save for the cranial haemorrhage. The judge concluded that only the mother could have been responsible for that injury because on the expert evidence of Mr Richards, a paediatric neurologist, the injury must have been sustained within 24 hours of admission, and in those 24 hours preceding admission Mr T had had no access to the baby.
5. Following HHJ Ludlow's conclusion there was a welfare hearing which the mother did not attend and a care order was made and a placement order, so that Abigail has moved into an adoptive family.
6. During these proceedings the mother formed a new relationship with a Mr Irons, and as a result there was born to them a boy, subsequently christened Justice. Criminal charges had been brought against the mother as a consequence of the findings in the family justice system, and in the course of preparation for trial the Crown sought Mr Richards' attendance. He was not available and recommended a Mr Jayamohan as an able substitute. Mr Jayamohan is also a consultant paediatric neurosurgeon and he, having reviewed all the evidence, expressed a different opinion: namely, that the head injury could have been caused within the period of 48 hours prior to admission. That was a significant difference of opinion since the widening of the timescale brought Mr T into the pool of potential perpetrators. The Crown Prosecution Service in consequence did not proceed with the charge of grievous bodily harm against the mother. She pleaded to neglect and I believe has since been sentenced.
7. The intervention of the local authority following the birth of Justice was immediate. He was removed within two days of birth and he has been in interim care ever since. The final hearing of care proceedings in relation to Justice had been fixed for 22 October, and in an endeavour to bolster her prospects and the prospects of Mr Irons, an application was made for the reopening of the factual investigation to reflect the recently obtained opinion of Mr Jayamohan. Unfortunately it was not possible to put that before a judge prior to 16 October, and HHJ Harris had to balance the fact that the consequence of the fresh evidence undermined the judge's finding that the mother was the sole perpetrator of the head injury. It did not in any sense exculpate her but it did bring Mr T into the picture as a possible perpetrator of the head injury just as he was a possible perpetrator of all the other injuries.
8. HHJ Harris had to weigh that application against the reality that the mother was not seeking any reopening of the disposal orders in respect of Abigail and to accede to the application would have immediately aborted the fixture for the determination of Justice's future. At best it would have been possible to list it in the court sometime this month or next. The judge came to the very clear conclusion that the discretionary balance swung against the grant of the application and accordingly the trial on 22 October proceeded, and at the end of the hearing HHJ Lochrane delivered a full and careful judgment granting the application for care and placement orders.
9. It is to be noted that there has been no challenge to that judgment and its resulting orders. Miss Thain, who has represented the mother throughout and certainly since the year 2007, has disarmingly explained that, as a result of her inability to open an attachment to an email, the Appellant's Notice, limited to the order of 16 October, was filed; and she points to the fact that in her skeleton she had written as though there were a challenge also to the order of 22 October. Be that as it may, it is quite clear that our only task today is to rule upon the Appellant's Notice and the challenge to the judgment of HHJ Harris.
10. In support of her application Miss Thain has advanced three grounds. She submits that HHJ Harris correctly directed himself that she should not be tempted into consideration of what would be the arguments and the issues were she to direct the retrial, but, submits Miss Thain, having correctly identified her task, she then in subsequent paragraphs trespassed into what would become the territory of the judge at retrial if directed. I see no force whatsoever in that criticism. Miss Thain accepts that the judge fell into no error when she said in paragraph 24:
"Whilst the Court of Appeal in Re: K warned against taking over the role of the trial judge in terms of looking forward to findings at any future re-hearing, it was, however, part of the court's role, in considering whether there should be a re-hearing, to look ahead and look at what was the reasonable prospect that the evidence, on a re-hearing, would enable the mother to be excluded."
Miss Thain submits that the trespass comes in paragraph 29 when the judge said:
"It therefore seems to me not only that the mother does not establish a reasonable prospect that the evidence on a re-hearing would enable her to be excluded, but that it is almost inconceivable to consider that the evidence would result in her being excluded. Consequential upon that view, the very best, in my judgment, the mother could achieve on any re-hearing would be that the pool of perpetrators would be widened to include Mr T, as well as herself."
I see nothing that justifies criticism in that passage that I have cited. It is inevitable that in the exercise of the discretion the judge must evaluate what would be the high point for the applicant were the elaborate and expensive process of retrial ordained. The view that the judge took on the evidence in this case was in my opinion entirely justified. Look at this how you will, the best outcome that the mother could have hoped for had there been an elaborate reinvestigation, perhaps putting the evidence of Mr Richards alongside that of Mr Jayamohan, would have been that all injuries rested on the same foot: namely, that either the mother or Mr T were responsible.
11. Her second criticism is that the judge has ignored or breached the principle established in the Court of Appeal case of Re K  1 FLR 285, which I have already mentioned, that it is important that children removed from their biological family should have the best evidence in later life as to why they suffered that misfortune. Miss Thain has said that the judge has not sufficiently recognised that principle when in paragraph 33 she said that the distinction between the mother as sole perpetrator of one of the injuries and the mother as possible perpetrator of that injury in addition to the others was a distinction of such weight as to necessitate a retrial. That discretionary decision is simply not open to criticism. It may be that the judge went too far when she said that the distinction would not only be difficult for a child to comprehend (or rather Abigail, the specific child, to comprehend), but would also be difficult for an adult to comprehend. It is important that the distinction be recognised by those who have responsibility for the future of these children, initially the local authority, in due course the adoptive parents, who should ensure that the children have the best and fullest information. The best and fullest information cannot stop with the judgment of HHJ Ludlow in December 2007. It must extend to the subsequent contribution of the second expert extending the time frame. That was recognised by HHJ Harris when she said:
"So far as the head injury is concerned, [Abigail] would be able to be told, well, your mother may also have inflicted that injury on you, although it cannot be said definitively that she did so, because someone else could have done so."
That is precisely in my opinion how the full story should be presented in the future to the children.
12. As Mr Horrocks for the Guardian has pointed out, slips do occur when there can be no continuity of judgment and representation in all cases. Before the court on 16 October and 22 October, only one counsel covered both hearings and that is Miss Thain. For the local authority, for the father and for the Guardian there were different advocates appearing on the two days, and I suspect that HHJ Lochrane had very little idea of the basis of the rejection of the mother's application on 16 October, for in paragraph 17 of his judgment he described the expert opinion of Dr Jayamohan as "some apparently relatively superficially contradictory evidence". Plainly it would be unfair to this mother and unfair to these children were they to understand, from future life story book preparation or future discussion, that the contribution of Dr Jayamohan was really an irrelevance and that the mother had failed to obtain a retrial in reliance on irrelevant evidence. That was not the approach of HHJ Harris and it is reassuring to hear from Mr Bailey, who represents the local authority, that they fully adopt the estimation of HHJ Harris and that the children will in due course receive the most complete information as to the circumstances in which they were taken into care.
13. Mr Horrocks helpfully submits that a revision of the fact-finding conclusion that is not sufficiently significant as to merit a retrial but which is sufficiently significant to demand some revision of the detailed conclusion of the fact-finding trial should be flagged up to avoid the possibility that it will simply get lost in the mists with the passage of years. He suggests that one mechanism would be to append the fresh evidence, that justifies some revision but not a retrial, to the record, maybe as an attachment to the judgment refusing the application for a retrial. That is certainly a practical and sensible suggestion which merits adoption in future cases which are bound to arise, albeit not routinely or frequently.
14. So for all those reasons I would grant this application for permission but dismiss the consequential appeal.
Lady Justice Arden:
15. I agree that this appeal should be dismissed for all the reasons that my Lord has given.
Lord Justice Pitchford:
16. I also agree
Order: Application granted; appeal dismissed