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Children: Public Law Update (April 2011)

John Tughan, Barrister, of 4 Paper Buildings reviews recent developments in Public Law Children including several as yet unreported cases

John Tughan, Barrister, 4 Paper Buildings

John Tughan, Barrister, 4 Paper Buildings 

In this update on public law issues I will deal with the following areas: 

Post-adoption contact
In Re B (A Child) (11th March 2011) (References: LTL 11/3/2011 EXTEMPORE Document No.: Case Law - AC950186) the Court of Appeal were considering an application by a Mother for permission to apply for a contact order to her son who had been adopted.  C had a full brother (Z) who was two years younger than him. C had been placed in care and adopted but Z lived with M as her capacity had improved after C's removal. There was no direct contact between M and C after C's placement. M applied for permission to apply for a contact order in respect of C but permission was refused.  Some two years later M made the same application but was again refused permission by the same judge.  The Court of Appeal held that it was apparent from the submissions that the respondent local authority had made in the application proceedings that it had implicitly conceded that M's suggestion that she and C have direct contact was not without merit but that it would be better explored within the confines of existing post-adoption services rather than explored forensically.  Accordingly the real question for the judge was, given the concession that the family situation merited sensitive investigation, on what basis he could refuse M permission. It had to be borne in mind that a grant of permission only got M over the threshold and no more.  It was clear that whether M should have contact with C merited investigation and that conclusion was strengthened by the fact that Z, given his relationship to C, had very strong rights under the Convention. Moreover it was apparent that the judge had erred by allowing himself to be overly influenced by a consideration of the first application for permission. Accordingly in the circumstances the judge should have granted M permission.

The Court of Appeal relied upon the implicit concession by the local authority that the Mother's application was "not without merit".  That is a low threshold to cross for achieving permission to apply for a contact order in the sensitive circumstances of an established adoptive relationship.

Findings of fact issues
In Re L-R (Children) (8th March 2011) (References: LTL 8/3/2011 EXTEMPORE; Document No.: Case Law - AC9601410) the Court of Appeal were considering findings of fact in an alleged case of non-accidental injuries.  The appeal was brought on behalf of the child (G), supported by the local authority.  The trial judge had found that cuts to the child's head and a burn to his leg were self-inflicted.  This was a case of serious emotional disturbance to G as a result of the move of the family from the Ivory Coast to the UK, the cramped living conditions in the UK, the change in surroundings and the language (G did not speak English).  In February 2008, when aged eight, G was admitted to hospital where he was found to be suffering from lesions on his trunk, legs and buttocks, and three cuts to his head.  He was admitted again four days later with a further six cuts to his head. G was subsequently found to have a burn to his leg caused by a fire started in his bed. The local authority issued care proceedings in respect of D and G, who were placed in interim foster care, and a fact-finding hearing was held to determine who was responsible for G's injuries. It was the local authority's case that any or all of D, M and F had caused G's injuries. They denied that and asserted that his injuries were self-inflicted.  The judge heard extensive medical evidence from four experts, the thrust of which was that self-harm was hugely unusual in a male child, particularly one so young, and that self-inflicted cuts to the head were unknown to doctors and unreported in medical literature.  It stopped short, however, of concluding that it would have been impossible for G to have injured himself in that way.  The judge concluded that M and F were responsible for beating G, but that the cuts and the burn were self-inflicted.  G argued that the effect of the medical evidence was so powerful, it disentitled the judge to have found that his injuries were self-inflicted, and that the judge's factual findings in that regard were, accordingly, perverse.  The local authority submitted that the judge had erred in failing to attach sufficient weight to G's later interview denying responsibility for the cuts and instead blaming D, and in attaching too great a weight on the evidence of M and F who he had found to be responsible for beating G.

The Court of Appeal emphasised the difficulty for an appellate court reviewing the factual findings of a trial judge who had heard a great deal of oral evidence.  This judge had had well in mind the weight of medical opinion contrary to self-harm and had expressed a concise and accurate summary of the medical evidence in his judgment.  His finding that it was consistent with both explanations, namely that the injuries were either self-inflicted or inflicted by another person, represented his reminder to himself that the medical experts had not gone so far as to exclude self-harm on G's part. Although they had not encountered such self-harm before, they had not excluded the possibility that the cuts were self-inflicted. The judge had considered that he could make a finding in a positive form, which was, in principle, always more satisfactory than determining merely that an injury had been caused by any one of a pool of possible perpetrators. In those circumstances, he had been entitled to find that G was the perpetrator of his own cuts and had caused the fire.

(Per Jacob L.J.) Legal proceedings could never bring out the absolute truth of an event and the best that a judge could do in reaching a conclusion was to go by the evidence he had before him. If a judge did that fairly, by taking into account all relevant matters and ignoring irrelevant ones, that was the best that the human system could devise. In the instant case, the judge had weighed the evidence fairly, and whilst the absolute truth could never be known, his conclusion was one he was fully entitled to reach.

The Court of Appeal repeat, in this decision, the approach that a positive finding is more satisfactory than a finding of a pool of perpetrators.  The trial judge was faced with medical experts who had never heard of the self infliction of such injuries but could not exclude the possibility.  That left the finding of self-infliction open to the court.  Jacob LJ reminds us that in a system devised and operated by human beings the absolute truth is not usually available. 

The Court of Appeal were faced with another issue flowing from the expert medical evidence in a fact-finding situation in Re M (A Child) [2010] EWCA Civ 1467.  E had twice been admitted to hospital within the first four months of his life.  The first admission was when he had suffered an acute life-threatening event and the second was when he had sustained extensive bruising.  The acute life-threatening event had occurred while E was in the sole care of F and the issue was whether, as asserted by the local authority, it had a non-accidental cause.  The bruising, which it was accepted was non-accidental, had occurred while he had been in the care of both M and F, and the local authority's case was that both were possible perpetrators.  Having heard evidence from a consultant paediatrician that, in the absence of any other explanation, there was a significant possibility that the life-threatening event was non-accidental, the judge found that it was non-accidental.  She identified F as the perpetrator, and went on to identify both him and M as possible perpetrators of the bruising.  F appealed against the finding that the life-threatening event was non-accidental and M cross-appealed against her identification as a possible perpetrator of the bruising.

The Court of Appeal held that the finding that F had caused the life-threatening event would stand.  The gist of the judge's conclusion was that, according to the medical evidence, the circumstances were "very suspicious", and it was necessary for F to give an account which allayed her suspicions or which, at least, did not augment them.  He did not do so.  Both the content of his account and the manner in which he gave it augmented those suspicions and that was sufficient to repair the inability of the paediatrician to say that the life-threatening event was, on the balance of probabilities, non-accidental.  The judge's conclusion was that while it was unexplained, it was not inexplicable.

However, the finding that M was a possible perpetrator of the bruising would be set aside and replaced with a finding that F was the perpetrator.  Before finding that M was a possible perpetrator the judge needed to have found some evidence, beyond the mere fact that she had had joint care of E, casting doubt on the recognised excellence of her care.  There was, however, no such evidence. In contrast, the evidence in relation to F was quite otherwise and there was the finding that a matter of weeks before the bruising he had caused E to suffer an acute life-threatening event.

This is an interesting analysis of the correct judicial approach to fact-finding.  The judge was entitled to decide for herself whether an injury was indeed non-accidental notwithstanding that the medical expert had not concluded that it was.  Further, joint care by the parents was not enough of itself to bring M into the pool of perpetrators. 

Breach of professional guidance
In the first decision in this update dealing with the breach of guidelines where that breach impacts on a fact-finding exercise, the Court of Appeal decided the case of TW v A City Council [2011] EWCA Civ 17.  It was held that a judge in care proceedings had erred in finding that the uncle of the child in question had previously sexually assaulted a four-and-a-half-year-old child.  The judge had reached her decision on the basis of an Achieving Best Evidence interview which had not been conducted in accordance with the Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures.

In cases involving ABE interviews it is common, I would suggest, to find breaches of the guidelines.  The perfect interview has not yet been conducted.  The court recognises this in allowing "a broad margin of latitude" to the interviewer.  This case is an example of an interview being fundamentally undermined by the breaches of the guidelines.

The Court of Appeal held that the inadequacies of the ABE interview were "manifest". There was, on the face of the interview, an inadequate establishment of rapport; absolutely no free narrative recall by L; an abundance of leading questions, and no closure.  Everything was led by the interviewing officer and nothing was introduced into the interview by L.  Even allowing for a broad margin of latitude to anyone conducting such an interview, the departures from the Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures were self-evident and glaring.  The guidance made it clear that the interviewer had to keep an open mind and that the object of the exercise was not simply to get the child to repeat on camera what she had said earlier to someone else. Accordingly, no evidential weight could be placed on the interview.  Against that background, the judge's assessment that L was a forthright child  capable of standing up to and overcoming incompetent interviewing did not stand up to analysis.  It was not sufficient for a judge to rely primarily on the fact that a child was able, when being interviewed in a thoroughly unsatisfactory manner and contrary to the guidance, to make a number of inculpatory statements.  A clear analysis of all the evidence was required, and the child's interview had to be assessed in that context. The judge, therefore, needed to explain how and why the criminal trial came to the opposite conclusion, and to look carefully at the evidence available in each set of proceedings. Furthermore, there was no reference in her judgment to the substance of the rulings in the criminal trial, and no analysis of the atmosphere in L's house on the evening of the alleged incident. Those matters, combined with the judge's acceptance of the validity of L's ABE interview, were sufficient to vitiate her conclusion that T had sexually touched L. 

In A Local Authority v C [2011] EWHC 231 (Fam) (11th February 2011) Mrs Justice Theis was also dealing with the breach of published guidelines but in this case it related to the guidance published in March 2008 by the Royal College of Paediatrics and Child Health entitled 'The Physical Signs of Child Sexual Abuse'.  As a result of the breaches in that case the court was left with serious gaps in the evidential record.  Theis J, following on from the reported decision of Baker J in A London Borough Council v K [2009] EWHC 850 (Fam) made comment for the attention of all practitioners, medical and legal:

"...bearing in mind the experience in this case, I would wish the message to go out loud and clear that compliance with the guidance in terms of written records (including line drawings) of examinations using precise terminology should, in my judgment, be the norm." 

Both the Theis J and the Baker J decisions are essential reading for any practitioner dealing with the issues of physical examination for signs of sexual abuse.  Both, for different reasons,  are salutary reminders of the limits of expert medical evidence and the extent to which the proper recording of such examinations is crucial to any court having to make decisions based on those examinations. 

The best place to find the 2008 Royal College Guidance is from the Royal College itself.