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C (A Child) [2012] EWCA Civ 535

Appeal by mother against findings made in care proceedings at a welfare hearing which differed from the findings made at the previous fact-finding hearing

At the conclusion of a fact-finding hearing in care proceedings in Peterborough County Court, HHJ De Mille, had found that the child had suffered non accidental injuries whilst in the care of the parents, that neither parent could be ruled out as possible perpetrators and that the parent who was not the perpetrator must have known of the injuries and had failed to protect.

The final hearing had to be conducted by a different Judge – HHJ Green – due to the retirement of HHJ De Mille. During the hearing both parents were cross examined by the solicitor for the Guardian about the events on 14 June 2009, the day on which C had suffered the last of the injuries considered by Judge De Mille. Giving judgment at the end of the hearing, HHJ Green then made a finding that in fact the injury on 14th June had been caused by the mother and not the father, although the Judge did not go so far as to find this to be the case in respect of all of the injuries suffered by the child. This finding did not, however, make any difference to the final order made by the Judge.

The Mother appealed the finding made by HHJ Green.

Thorpe LJ followed a course which he described as "contrary to authority that appeals can only be brought against orders and not judgments" (paragraph 10) and struck out the paragraphs of the judgment in which HHJ Green had made the finding against the mother. He described HHJ Green's having made the findings at the end of the final hearing as procedurally unorthodox and that the mother's right to a fair trial had been breached since she had no forewarning and nobody had known that the judge was contemplating any revisionary findings as to past events in the final hearing judgment. The importance of striking out the offending paragraphs of the judgment was that, unless done, the mother's relationship with the child's carers and indeed her contact with the child might have been adversely affected.

Appeal allowed.

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers

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Case No: B4/2011/2662
Neutral Citation Number: [2012] EWCA Civ 535
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PETERBOROUGH COUNTY COURT
(HER HONOUR JUDGE GREEN)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 16 February 2012

Before:

LORD JUSTICE THORPE
and
LORD JUSTICE PATTEN
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IN THE MATTER OF C (A Child)


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(DAR Transcript of
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Ms Sally Bradley QC and Ms Anita Thind (instructed by Messrs Futter Chapman) appeared on behalf of the Appellant Mother.

Miss King (instructed by Peterborough City Council) appeared on behalf of the Local Authority.

Mr Bennet appeared on behalf of the Guardian
 
The Fourth and Fifth Respondents, the Children, did not appear and were not represented.

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Judgment
(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:  
1. This is an application for permission to appeal the judgment of HHJ Green and his order given in the Peterborough County Court on 26 September 2011.

2. The application for permission was refused by the judge below, subject to an appellant's notice of 18 October, and considered by my Lady, Black LJ, on 19 December when she adjourned the application for oral hearing on notice.  The appellant's notice, supported by a skeleton argument settled by Mrs Bradley QC and her junior Ms Thind, took two points, one of which has fallen by the way.  All that remains is the justified criticism of the judge in his stated conclusion between paragraphs 45 and 47 that the applicant was solely responsible for injuries to her child inflicted on 14 June 2009.

3. It is quite unnecessary to go into the detail beyond saying that the care proceedings relating to the child C, born on 25 January 2009, were issued on 17 June 2009.  This was the plainest case of asserted non accidental injury, and inevitably there was a trial to establish as a matter of fact what had happened to this young child in the past, and the responsibility for establishing past fact rested with Judge Peter De Mille who was then the designated judge in the Peterborough Court.  He delivered judgment on 18 December and made the following findings:

"1. C did suffer non accidental injuries.
2.  They were occasioned at a time when he was in the care of his parents.
3.  I cannot rule out either as a perpetrator.
4.  Both parents knew, or ought to have known, of these injuries.
5. Whichever is not the perpetrator, because of that and because, as I have found, they must have been aware of the injuries, they failed to protect C."

4. Judge De Mille did, however, give an indication that although he could make no findings specifically, he inclined to the view that the father was perhaps the more likely perpetrator.

5. The continuing proceedings had an unfortunate course when time after time they were adjourned.  But we can see that eventually, when the case came through to Judge Green after the retirement of Judge De Mille in September 2011, he started from the foundation of the fact-finding judgment of Judge De Mille and he further recorded in paragraph 8 of his judgment:

"Neither has admitted causing any of the injuries.  Each has alleged that the other must have been responsible and there had been no further clear evidence either way that had emerged prior to this hearing."

6. At the trial before Judge Green he had to consider expert evidence from a Dr Levy and a Mr Luger.  The child was represented by a solicitor advocate and during the course of his cross examination of both parents he probed, particularly in regard to the events on 14 June, the day on which C had suffered the last of the injuries considered by Judge De Mille.  When Judge Green came to give his judgment it seems that he built quite an edifice on those questions put to the parents by the guardian, for in paragraph 45 he said:

"So on the basis of that evidence I am satisfied, on the balance of probabilities, that mother caused the injuries on that occasion, that father did not cause any injury on that occasion and, of course, the decision has already been made by His Honour Judge De Mille that that injury was non-accidental."

7. He developed this in the following two paragraphs when he said:

"46. I have gone on to consider carefully whether this finding should logically lead to a wider finding as to the other injuries exonerating father.  After giving that some very careful thought, I have come to the conclusion that I should not go that far, despite the fact that the conclusion by His Honour Judge De Mille was that the injuries were likely to have been caused by the same kind of act causing the same kind of injury over and over again and that that, of course, may point in that direction.  It is very regrettable in this case there could not be judicial continuity.  I did not hear the evidence in the fact-finding hearing so I have not heard any of the detailed evidence in relation to the other incidents. I am conscious that the evidence that Judge De Mille heard led him to indicate that he marginally suspected it may have been father who caused the injuries but was not able to make any finding.

47. So I limit my finding to one that mother caused the injuries that took place on the 14th June 2009 but were noticed on 15th. That finding must, of course, raise some suspicion that the other injuries may have been caused by mother rather than by father but in these difficult circumstances I am not satisfied that that suspicion reaches the standard necessary to a finding.  So, of course, it remains that the finding of His Honour Judge De Mille in respect of all the other injuries remain as they were and that in respect of the June 14th injuries father must have been aware and failed to protect."

8. The judge went on to ask himself to what extent that subsidiary conclusion affected his decision on welfare issues, and he recorded that it had no effect at all.  He would have reached the same conclusion as to the orders most likely to advance the welfare of C as he would have done had he not made the ancillary finding.

9. Mrs Bradley has very sensibly had pragmatic discussion with other counsel and we have accordingly noted general consent that we should proceed to deal not only with the application for permission but with any resulting appeal.  Both Mrs King for the local authority and Mr Bennett for the guardian do not stand in the way of Mrs Bradley's submission that justice can only be done by striking from the judgment below the paragraphs that I have cited, namely 45 to 47 inclusive.  There is, of course, a difficulty because there is no paragraph in the order that records the judge's finding.  Had there been such a paragraph it would be simple enough to allow the appeal and to strike out the offending paragraph.

10. Accordingly, the course that I propose is one that is contrary to authority that appeals can only be brought against orders and not judgments.  However, it seems to me that, in fairness to the mother, we should intervene to strike out these offending paragraphs.  To go to any more elaborate step would only be a waste of public money.  The offending paragraphs are undoubtedly procedurally unorthodox.  The judge was perhaps tempted by the line of questioning from the guardian into conceiving that there was fresh evidence that allowed him to go beyond the point reached by Judge De Mille, but the mother's fundamental right to fair trial in the process was undoubtedly breached.  No wonder that at the end of the hearing she objected to the paragraphs which came out of the blue without any forewarning and nobody had the least idea that the judge was contemplating any revisionary statements as to what had happened in the past.  If the paragraphs remain within the judgment they could well blight the mother's prospects of developing harmonious relationships with C's carers and, indeed, with a developing contact relationship with C.

11. So, not without some misgivings, I would accede to Mrs Bradley's submission.

Lord Justice Patten:  
12. I agree.

Order: Application granted, appeal allowed