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K (Children) [2005] EWCA Civ 1226

Appeal by LA against judge's refusal to make an interim care order. Appeal allowed. Parents' application for permission to cross-appeal refused.

B4/2005/1398; B4/2005/1398(A)

B4/2005/1461; B4/2005/1576

Neutral Citation Number: [2005] EWCA Civ 1226





Royal Courts of Justice


London, WC2

Tuesday, 16th August 2005

B E F O R E:




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(Computer-Aided Transcript of the Palantype Notes of

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MR ANDREW BAGCHI (instructed by Leicester City Council, Leicester LE1 6ZG) appeared on behalf of the Appellant Leicester City Council

MRS FRANCES OLDHAM QC and MISS HANNAH MARKHAM (instructed by Messrs Nelsons, Leicester LE1 3TU) appeared on behalf of the Respondent Mother

MRS FRANCES OLDHAM QC and MR CRAIG HOLT (instructed by Messrs Scott Beaumont, Leicester LE1 6RP) appeared on behalf of the Respondent Father

MISS ANN CHAVASSE (instructed by Messrs Dodds & Partners, Leicester LE1 5RA) appeared on behalf of the Respondent Guardian

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(As approved by the Court)

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Crown copyright©

1. LORD JUSTICE LAWS: I will ask Lord Justice Wall to give the first judgment.

2. LORD JUSTICE WALL: On 17th June 2005 His Honour Judge Brunning, sitting in the Leicester County Court, handed down a judgment in care proceedings which had been instituted by the Leicester City Council in relation to two children, X born on 15th May 1999 and his brother Y born on 7th July 2004. The mother of two children is NK. Their father is OB. The children's parents are not married and Mr B does not have parental responsibility for either child. He was, however, for obvious reasons a party to the care proceedings. The children themselves are represented in the proceedings by their guardian, Mr Richard Lee.

3. The judge had been hearing the first limb of what has become commonly known in care proceedings as a "split hearing". The reasons for such hearings procedure are well known, but needs I think to be repeated in this case. For the court to be able to make a care order in relation to any child, a two-stage process is necessary. Firstly, the court has to be satisfied that the threshold criteria under section 31(2) of the Children Act 1989 have been met on the facts of the case. Only if the statutory criteria have been met can the court proceed to the second stage, at the conclusion of which it decides on welfare grounds what (if any) order -- including, of course, a care order -- should be made in relation to the child concerned. If, however, the court is not satisfied that the threshold criteria have been met, that is the end of the care proceedings. The court has no jurisdiction to make a care or supervision order in relation to a child in relation to whom the threshold criteria are not satisfied. That, as Lord Nicholls pointed out in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80, is the protection provided for parents against the state's intervention.

4. The terms of section 31(2) are important, and although they are familiar I propose to set them out:

"(2) A court may only make a care order or supervision order if it is satisfied--

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to--

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; ..."

5. The two children in the present case were at the time of the hearing subject to interim care orders. The criteria for making an interim care order are as follows and contained in section 38(2) of the Act:

"A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)."

6. The burden of establishing the threshold criteria lies of course on the local authority, and the reason for a split hearing is frequently that the facts on which the threshold criteria depend are disputed by the parents, and if resolved in the parents' favour would bring the proceedings to an end. Thus to take a simple example, if the only basis for care proceedings instituted by a local authority is that a child has injuries which the local authority submits are non-accidental, but which the parents assert have an innocent or natural cause, it is often sensible to try that issue first, since the decision as to the child's future cannot be made unless until it is resolved; and if the injuries are innocent that is the end of the matter.

7. In the instant case, the threshold criteria in relation to the two children were different. In relation to Y the allegation was specific, and there is no doubt that on 26th August 2004 he had suffered an extremely serious injury to his brain caused by hypoxic-ischaemic damage. In layman's language his brain had been starved of its necessary oxygen supply for a sufficient period to cause serious brain injury. The judge put it succinctly and well when he said:

"Suffice it to say at this stage that [Y] had suffered hypoxic ischaemic damage to the brain which was very extensive. He had an epileptic seizure which lasted for over 20 hours. The prognosis is that he will have motor disability cerebral palsy; he will have speech and hearing difficulties; he is blind, and is unlikely to recover vision. He will thus have continuing and significant disability. In plain terms, he has suffered a devastating injury which is lifelong in its consequences."

8. The primary question for the judge was how had that injury occurred? Did it have a natural, accidental or other innocent cause? If so, it was not attributable to Y's parents and the threshold criteria would not be satisfied. Alternatively, was the injury non-accidentally inflicted on Y by one of his parents, and in particular had he been deliberately asphyxiated by one of them?

9. The judge's findings were clear and unequivocal: Y had been deliberately smothered by one of his parents. The judge was unable to decide who had done it. Both parents, he found, were lying in their varying explanations as to what had happened. Both knew what had happened and were not telling the court. In these circumstances, and provided that this conclusion was one which was properly open to the judge, his finding that the threshold criteria were satisfied in relation to Y was inevitable.

10. X had not been injured. In order to satisfy the threshold criteria in relation to him, the local authority relied on a variety of grounds, which included domestic violence between the parents which he had on occasions witnessed; his mother's chaotic lifestyle; his father's alcoholism; and the unauthorised contact which his mother had permitted his father to have with him. In addition -- and this in my judgment is critical in this case -- in its closing submissions the local authority argued that if the findings it sought in relation to Y were made out (namely that he had been deliberately suffocated by one of his parents and that the other had failed to protect him) then there was a likelihood that X would suffer significant harm:

"... caused by the perpetrator of [Y's] injuries, from which harm the other parent would be unable to protect [X] by reason or his or her collusive relationship with the perpetrator."

That is a direct quotation from the closing submissions made by the local authority.

11. The judge found that the threshold criteria were not satisfied in relation to X and the proceedings in relation to him were, accordingly, dismissed. The judge not only refused the local authority permission to appeal, but also refused to make an interim order pending any appeal against the dismissal of the application, as is permitted by section 40(1)(a) of the Children Act 1989 - in effect, an interim care order pending the outcome of this appeal. The result, of course, was that X ceased to be the subject of the interim care order which the judge had initially made on 31st January 2005 and the local authority ceased to have parental responsibility for him.

12. It should be said that under the interim care order X was living with his mother and having supervised contact with his father. Y, who required special care, was placed with local authority foster carers.

13. On 4th July 2005 I granted the local authority permission to appeal against the judge's orders in relation to X, and on 12th July the children's guardian filed a respondent's notice supporting the appeal by the local authority.

14. The parents have also sought to challenge the judge's findings in relation to Y, and on 17th June 2005 the judge extended their time for making an application for permission to appeal until 8th July. However, on 4th July he refused permission to appeal and gave directions in the proceedings relating to Y for a further hearing to take place on 15th November 2005. In the interim Y was to remain the subject of interim care orders.

15. A joint application for permission to appeal with accompanying grounds was filed on behalf of the parents. No doubt due to the proximity of this appeal it was not submitted to a single Lord Justice for consideration on the papers, but we decided at the outset of this hearing that we should hear that application first because, were it granted, it would clearly have a significant effect on the local authority's substantive appeal.

16. After hearing leading counsel for the parents, we indicated that the application for permission would be refused and that we would give our reasons for that refusal in the context of dealing with the local authority's substantive appeal.

17. Before doing so, however, I need to set out the background facts, albeit in as little detail is as consistent with a proper understanding of this judgment. Miss K was born on 20th October 1984. She is now 20. She was thus 14 years and seven months when X was born, and plainly under 14 when he was conceived. Mr B was born on 21st October 1981. He is 23, and was thus 17 when X was born. Their relationship unsurprisingly was volatile. Mr B is an alcoholic. He also has a criminal record with serious convictions for violence. There have been a number of incidents of domestic violence between the couple, sometimes involving the police and sometimes witnessed by X.

18. Miss K's lifestyle is described as chaotic. She has a chronic inability to get up in the morning and to get X to school. She has maintained her relationship with Mr B despite his violence towards her, and despite his enforced absences in prison. When she broke the relationship during the course of the proceedings, she appears to have taken up with a man who also had serious convictions for violence. However, it has to be said that on a different level she cares well for X. He is clean and well turned out. Were he to attend regularly at school, he would be doing well. She plainly loves her children. She is plainly the most important person in X's life; and, with one brief exception, it has been the local authority's policy -- and, as I understand it, would remain its care plan if the care proceedings continue -- that if possible, and if it is consistent with X's welfare, he should continue to be cared for by his mother.

19. In its summary of the background, the local authority summarised the period leading up to the institution of the proceedings in somewhat bland terms, but nonetheless terms which will suffice for the present purposes:

"Before October 2004, when the referral which gave rise to these proceedings was made, there had been a number of referrals of the family to social services based on various concerns including allegations that the father had been seen to hit [X], which allegations remained unresolved and did not result in any proceedings. On 16th August 2004 concern was expressed by a social worker as to the number of recorded incidents of domestic violence and had reached a level where the matter was referred on for an assessment.

On 26th August 2004 [Y], aged 4 months, was admitted by ambulance to the Leicester Royal Infirmary with a recent history of fitting. On admission he was seen to have a petechial rash to the leg. An initial diagnosis of status epilepticus was made. [Y] was given ventilatory support. A CT scan was performed on admission ..."

I need not give the detail of that investigation. The summary continues:

"[Y] remained in hospital for about 6 weeks. The investigations of the hospital clinicians as to the cause of [Y's] brain and retinal damage were unable to rule out a non-accidental shaking injury as a cause. The parents denied inflicting any injury to [Y]. Social services were notified, a child protection investigation began and [Y] was discharged into voluntary foster care. When the mother withdrew her consent to voluntary accommodation an EPO was sought in relation to both children, granted and later extended. [Y] remained in foster care, [X] [after a brief period in foster care) lived at home under a social work agreement which required the father to vacate the home and for his contact to the children to be monitored."

That is the reference I made earlier to the brief period when X had been removed from his mother's care.

20. Against that background, again which is short and to which I will need to return in relation to X, I turn to examine the judge's findings in relation to Y and the attack on them which is made by Mrs Oldham QC on behalf of the parents.

21. The judgment in relation to Y runs from paragraphs 3 to 114 of the judgment. No criticism is made of the manner in which the judge directed himself as to the burden and standard of proof. The judge had an abundance of high quality medical evidence, which he lists in paragraph 7 of the judgment. In terms of discipline, it came from: a consultant paediatrician; a consultant neuroradiologist; a consultant paediatric neurosurgeon; a consultant paediatric haematologist; a consultant ophthalmologist; and a consultant paediatric radiologist. The judge's conclusions on the medical evidence is contained in paragraphs 11-13 of the judgment in these terms:

"11. Having considered the evidence and heard the oral evidence of these three doctors, I am satisfied that the following conclusions are established by the evidence and I so find:

1. Asphyxia was the most probable cause of the injury.

2. [Y] was deprived of oxygen for a period of some minutes.

3. The asphyxia caused the hypoxic ischaemia.

4. The hypoxic ischaemia caused the epilepsy.

5. A child who suffers an episode of asphyxia would be very unwell afterwards and certainly not smiling and normal.

6. There is a possibility that [Y] was suffering from viral encephalitis but there was no clinical evidence from blood tests or lumbar punctures or other features to support such a possibility.

7. Description of [Y's] presentation in the hours before his admission are inconsistent with the presence of a developing viral infection; and there were no other test results or clinical signs to support such.

8. The incident occurred between 2 and 6 hours before the scan was taken at approximately 2pm on the 26 of August.

12. Counsel have not sought to argue that any other formulation of the medical evidence is possible.

13. The stark issue in the case therefore is whether the episode of asphyxiation was accidental or whether it was deliberately inflicted upon [Y]."

22. There were, of course, only two possible perpetrators: only his mother and his father had been with Y at the relevant time.

23. The judge spends a very substantial part of the judgment going through the evidence given by the parents and giving his impression of them both. He reminds himself of the invaluable process of examination and cross-examination and the opportunity this gave him to observe the witnesses. He made every allowance for the age, inexperience and limitations, both emotional and intellectual, of the witnesses themselves. His conclusion at the end of the process again was unequivocal. Both parents had lied extensively. He found himself unable, as a consequence, to conclude precisely what had happened. He could certainly place no reliance on their accounts, save that he was satisfied, for reasons I shall come to in just a moment, that the child had been deliberately asphyxiated.

24. In paragraph 89 of the judgment he says:

"... there are realistically, two alternatives. The first is that it was accidental. The second is that it was deliberate. What is the evidence which may enable the Court to conclude that it was on the balance of probabilities accidental?"

25. The judge then goes through the parents' description and rejects the parents' evidence that the asphyxiation was accidental. He gives his reasons for reaching that conclusion. At paragraph 100 he says:

"100. Counsel in their closing submissions to me asserted that it was a wholly unwarranted leap to make the move from rejection of the accidental thesis to a finding that there had been deliberate asphyxiation.

101. I am however satisfied that there is no other explanation which is probable. I am not, I trust, speculating fancifully when I say that there is no other more probable explanation."

26. Against that background, he concluded that the failure to be honest at the outset and the subsequent welter of lies told by the parents were of significance:

"Both of these young people know what happened. Neither of them has chosen to tell the Court. Both gave the impression in evidence they were seeking to cover something up. Though an accident may be shameful, it would not need to be persistently denied until almost the last minute of the trial itself."

27. He then went on finally to reject the suggestion that the asphyxiation could have been caused medically by viral encephalitis. He gives detailed reasons for that on the medical evidence, and concludes:

"I therefore conclude and so find that [Y] was deliberately asphyxiated by one or other of these parents. I cannot say which of them was responsible. They know who was. They have chosen to keep quiet."

28. The judgment is attacked by the parents on the basis, principally I think, that the judge was wrong to address only two possible causes for Y's injuries at the extreme of the spectrum, i.e. that it was either innocent or that it was deliberate suffocation. It is submitted that the parties, including the local authority, invited the judge to consider a number of different mechanisms for injury which would have included what one might I suppose call negligence, i.e. conduct which was blameworthy but not deliberate. Cogent evidence, it is said, is required to reach a finding of deliberate asphyxiation and the evidence, it is submitted, did not reach that cogent standard, particularly given the affection with which Y was seen to have been held by his parents. The judge, it is argued, was wrong in particular to reject the mother's version which had an element of consistency, and the judge should have considered the possibility that the parents may have been negligent and that the care given was not that to be expected of a reasonable parent, but fell short of being a deliberate act of asphyxiation. The judge, in short, had closed his mind to any possibility other than the accidental or the deliberate.

29. Furthermore, although this was not emphasised to us in the course of Mrs Oldham's able submissions to us this morning, in the skeleton argument the point is taken that the judge should have given himself what has become known as the Lucas direction on the untruthfulness of the witnesses, and that he failed to take into account a number of aspects of the mother's personality which should have led him to a different conclusion.

30. I find myself wholly unpersuaded by these arguments. The judge has considerable experience of care proceedings and had the inestimable advantage of hearing and seeing both witnesses in the witness box at some considerable length. Neither parent was telling the truth. The judge thus had no help from them about what happened. In these circumstances, the choice which he gave himself (namely, was this a non-accidental injury or does it have an innocent cause) was the proper choice to address to himself, and any judge hearing a case of this nature and having the opportunity to observe the parents in the witness box over an extended period is, in my judgment, entitled to form an assessment of them and of their responsibility for injuries to a child, even if he cannot identify which of them was the actual perpetrator. There is, in my view, a lack of logic in suggesting that the judge should in these circumstances have found a halfway house, when both parents were clearly not telling him the truth, when both parents clearly knew what had happened, and where, if there was an innocent explanation it would have been open to them to give it, even if it did not cast them in a particularly good light.

31. I have no difficulty at all in finding that in the first part of his judgment, which is both lengthy and careful, the judge reached a conclusion which was plainly open to him. This child had been asphyxiated. The parents' explanation for the injuries was confused, untenable and dishonest. In those circumstances it was manifestly open to the judge, in my view, to find that the child had been deliberately asphyxiated. Indeed, it would be a grave limitation on the powers of child protection if a judge in these circumstances were not able to reach such a conclusion. His conclusion in my judgment is not vitiated by the fact that he did not consider a hypothetical middle course.

32. For those reasons, I would refuse the parents permission to appeal against the judge's findings in relation to Y, which in my view must stand.

33. This then leads me to the local authority's substantive appeal against the judge's order. The local authority essentially takes three points in its grounds of appeal. They are as follows:

"... the judge erred in law and was plainly wrong in refusing to find the threshold criteria established in relation to [X]. The Applicant relied on 3 areas in seeking to establish that the threshold criteria were satisfied:-

(1) the implications for the case in relation to [X] of any findings the judge was able to make in relation to [Y];

(2) [X's] exposure to domestic violence and volatility between his parents;

(3) his parents' failure to establish that [X] attended school regularly on time or at all."

34. In my judgment, there is force in all three grounds, but on the facts of this case the first is determinative. In his reserved judgment, as I have already indicated, the judge spends some 114 paragraphs dealing with the injuries to Y and making the findings to which I have already referred. I make no criticism of that: indeed, I find his analysis compelling.

35. The remaining 30 paragraphs are addressed to the threshold criteria relating to X. However, nowhere does the judge address the implications for X of the serious findings he has made about the conduct of the children's parents in inflicting life-threatening injuries on Y. The point is simply not mentioned. In my judgment, that is a serious error which vitiates the judge's analysis of the threshold criteria as far as they relate to X.

36. It is plain from the local authority's written submissions, to which I have already referred, that the judge was invited to consider the likelihood of significant harm to X on the basis of the injuries caused to Y. In the substantive judgment, the judge addresses the question of the child suffering significant harm by reference to domestic violence; the mother's lifestyle; the father's alcoholic dependence and so on; but does not address the question of the implications of Y's injuries, nor does he address the threshold criteria being satisfied on the likelihood of significant harm. In relation to the other matters, the judge decides that these do not amount to significant harm, although they constitute an element of harm, and spends some time discussing a report by a psychologist, Dr Elizabeth Dower, who had been instructed to advise the court on the question of whether or not X was indeed suffering significant harm. Dr Dower, however, does not address, nor could she, the likelihood of harm to X deriving from Y's injuries or otherwise.

37. When the judgment was handed down, counsel for the local authority and other counsel attended for the purpose, as far as the local authority was concerned, of seeking permission to appeal. Counsel for the local authority told the judge that he wished to make an application for permission to appeal and for an order under section 40 of the Children Act 1989. Rather unfortunately, I think, the judge immediately refused both applications without hearing any argument. However, Mr Bagchi developed the argument, which of course the judge listened to. In the course of that argument, Mr Bagchi made the point that the judge had failed in his main judgment to take into account the matters raised by the local authority, and, in particular, the implications of the judge's findings in relation to Y for X, given the serious nature of the findings made. That appears to have prompted the judge to make this short observation (I quote from the transcript):

"Dealing with that latter point, it seems to me that what happened to [Y] was a wholly discrete episode of violence to a small baby, as these things often are. The occurrence does not, in my judgment, raise any significant risk of physical harm to [X]. There are many cases of similar kind where something happens as a result of a loss of temper in relation to a small baby. I believe that to be the case here. I do not see that [X] is in any way at risk of significant physical harm from his mother or father."

38. I find a number of difficulties with this passage. Plainly had the judge been invited (under the doctrine of English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409) to reconsider his substantive judgment on the basis that he had not addressed the likelihood of significant harm to X based on Y's injuries, it would have been open to the judge to have added to the judgment setting out his reasons for reaching that view. I therefore cannot think it wholly objectionable that we need to consider what the judge said in the supplementary judgment when the point was not mentioned in the main judgment. I therefore take this as being (albeit brief) the judge's reasoning on the point.

39. I have to say that I disagree with him about it. On the facts of this case it does not seem to me that the court can properly say that the injuries to Y can be compartmentalised and that they have no relevance to X's future. I suspect that the error into which the judge has fallen is that he has looked at this case predominantly as a case of actual significant harm, and that the question he was having to decide was whether the child had suffered significant harm; that is significant harm suffered prior to the date of the institution of the proceedings. As a consequence, it seems to me, he had not addressed his mind properly to the question of likelihood of significant harm.

40. In my judgment, where life-threatening injuries have been caused by parents to one child; where the judge cannot decide which of those parents has caused those life-threatening injuries; where those parents are both found by the judge to have lied seriously about the injuries to the other child; then if the court is not to find the threshold criteria met in relation to the uninjured child, there have either to be highly unusual circumstances in the case, alternatively, the judge must give a full and reasoned explanation of why it is he takes the view that the child is not like to suffer significant harm in those circumstances. As I have already said, it seems to me quite inadequate for a judge to say, in effect, that this can be compartmentalised, or that it is a discrete episode of violence to a small baby, and does not affect X; and that X is therefore at no risk.

41. I notice also that the judge specifically limits the question in the quotation to "significant risk of physical harm". In my judgment, the risk of significant harm in this context is much wider than the purely physical. The court needs to consider the whole family dynamic. For example, we know from the evidence that X is very fond of his small brother. He has, I imagine, no understanding of why it is that Y is currently not living with the family or why Y is unwell, and the whole ambit of his relationship with his brother and his need to understand what has happened to his brother comes, in my judgment, within the concept of likelihood of significant harm.

42. In these circumstances, it seems to me, firstly, that the judge was plainly wrong not to deal with the matter in his first judgment. Secondly, when he comes to deal with it in his second judgment, he makes a further error by compartmentalising the violence and saying it has no relevance to the other child. In my judgment, the errors in that approach are fatal to his finding that the threshold criteria are not met in relation to X.

43. In these circumstances, it may not strictly be necessary to deal in any detail with the remaining grounds put forward on behalf of the local authority, but I have to say that I am also unhappy about the judge's other conclusions.

44. As to domestic violence, it is clear to me that the relationship between the parties was more volatile and contained more violence than either, particularly the father, was prepared to acknowledge. Mrs Oldham valiantly took us to the transcript this morning in an attempt to show that the father (I think I use her words, but if I do not I will adopt them as my own) had "come clean" in relation to the violence. But the extract she showed us, in my judgment, simply showed the classic evasion of the serial abuser who says; yes, I did hit her but not as hard as she said, or as often as she said, or as badly as she said and so on.

45. On this aspect of the case there is another point which is worrying and where the judge went wrong. The local authority wanted to put in evidence a statement which the mother had made to one of the social workers in the case, Ms V-H, in March 2005, where Miss K gave in some graphic detail incidents of violence to her which also involved X.

46. What had happened as I understand it was that there had been an application by the parents at a fairly late stage for disclosure of local authority documentation, including case records. That application had been granted and this document had emerged as part of the discovery process. The document had been duly put in the court bundle, but because of the late disclosure the allegations contained in it had not been included in the local authority's threshold statement upon which it advanced its case. When counsel for the local authority made an application to the judge to put these passages to the parents and also to show the document to Dr Dower, he met with a dusty answer from the judge. It was far too late, the judge said, to introduce it. The judge, from a case management point of view, appears to have been irritated that this document had been produced only at the last moment.

47. As far as that is concerned, I quite understand the judge's irritation. Care proceedings are expensive and cumbersome. There is a protocol for their preparation. They need to be carefully prepared and documentation needs to be put in order. But having said all of that, it seems to me wrong that the judge should have denied himself clearly important material upon which he was to make findings of fact in a stage 1 hearing, particularly as domestic violence was a critical part of the local authority's case. In my judgment, the judge was wrong to exclude this document from evidence and to exclude its use in the proceedings. That, when I look at the judge's findings on domestic violence, reinforces the impression they otherwise give me, namely that the judge has not taken them with the seriousness which they deserve.

48. There is one particular incident which took place in January 2005, and which indeed, as I understand it, was the basis on which the judge continued the interim care order made by a District Judge, in which the father, on 7th January, according to the police report, had tried to take X. He had gone to the mother's address to take the child. She had left the property with X, gone to another address to ring for the police. The father had tried to pull the child away from the mother. She ran back into her own house with the child. The father then kicked in the door, punched the mother in the face while X was in the room. X ran upstairs and hid, whilst the father started shouting and pushing Miss K about. On the arrival of the police he ran upstairs and tried to hide, but having failed to do so, he jumped out of the first-floor window. He was caught about ten minutes later in the street. It appears he had broken one if not both of his ankles/heels and had to been taken to Leicester Royal Infirmary, where he was admitted for a few days. Fortunately X was physically unhurt, but Miss K had bruises to the left side of her face.

49. The judge deals with that incident in the course of his judgment. He itemises it as one of the incidents which X had witnessed:

"The father went to the family home and attempted to take [X]. He tried to pull [X] away from the mother. He kicked in the front door and punched her in the face and then tried to escape from the Police when they arrived."

50. As a consequence of the four examples which the judge identifies in relation to domestic violence, the judge concludes:

"It is probable in all the circumstances that [X] has witnessed a number of violent arguments and fights between his parents, often when his father was drunk. It is probable that this has caused him emotional harm."

But, the judge said, not significant emotional harm.

51. The judge appears to have taken the view that the harm was not significant partly because of his local knowledge of the behaviour of parents in the area. He makes a specific comment to that effect towards the end of his judgment, when he says this:

"What I pay more attention to and give greater weight to is my own sense that the word 'significant' was intended to be restrictive and applicable in cases where the drastic step of State intervention in family life could be justified. In the course of the case on several occasions I remarked to Counsel for the Local Authority that if lateness at school or non attendance at school of this proportion were to be a proper basis for intervention by the Local Authority, there would be thousands of cases where each year care orders would be sought. The same comments apply to cases where there are arguments when drink is consumed excessively and where the parents occasionally indulge in physical violence as has been the case here."

52. In my judgment that was likely to have been a considerable understatement in relation to domestic violence. In the light of his exclusion of the interview with the mother to which I have referred, the judge's findings on domestic violence are unsafe, and I think the judge was wrong to find that X had not suffered significant harm as a consequence of domestic violence. Alternatively, and this perhaps is a stronger point, he was plainly wrong not to conclude that there was a likelihood that X would suffer significant harm if he continued to be exposed to the volatile and domestically violent relationship between his parents to which a return to his mother's care, unprotected by an interim care or supervision order would be likely to expose him. So, in my view, the second limb of the judge's reasons for finding the threshold criteria not made out is weak and in my judgment should not stand.

53. The final question related to education. This is very much tied up with the report of the psychologist, Dr Dower. The difficulty I have with Dr Dower's report, and I do not in any sense wish to be critical of her, is twofold. Firstly, she had a very limited exposure to X and to the family. Indeed, she never saw X with his mother. Secondly, she concentrates exclusively on the question of significant harm in the context of the first limb, whether X was suffering from significant harm, not whether he was likely to suffer from significant harm, and her report is directed only to the former. In this respect, her report is affected by the limits of her knowledge. The evidence from the school, however, was that X was a student of average ability and that were he to attend on a regular basis he would be doing well, but that his attendance had been sporadic and insufficient. It may be that that attendance improved during the period of the interim care order, but the matter is not entirely clear to me.

54. I have already read the judge's conclusion in relation to school attendance. In my judgment, what it illustrates, once again, is the dangers of compartmentalisation in relation to this case. I am reasonably confident that, in one sense, the judge would probably be right: if the only issue in this case was X's school attendance, the local authority might well not have taken proceedings in relation to him. But when one looks at school attendance in the overall context of the case, and sees it as part of the family dynamic and sees the mother's incapacity to get the child to school on a regular basis, in my judgment it assumes a greater importance.

55. In summary, if in this context Dr Dower is right and so far the child's resilience has prevented him from suffering significant harm due to lack of schooling, then in my judgment there must be, in the terms of H and R, a real possibility that he will suffer significant harm if that position is not rectified.

56. So on all three limbs it seems to me the judge's assessment of X's threshold criteria is faulty, and in my judgment his finding that the threshold criteria were not met simply cannot stand.

57. I would like to make it as clear as I possibly can at this point that we are not deciding, nor was the judge deciding, what the ultimate future of X should be on a welfare basis. That is for part two. I suspect that the judge may have, in his mind at least, begun to think in those terms when looking at the threshold criteria, rather than concentrating on them. I anticipate that everybody's wish in this case, if it is possible and in the interests of the child, would be to keep X with his mother. But that is a welfare question, the subject of assessment, the subject of further evidence and the subject of further analysis of the family dynamic and the role of his parents in D's life.

58. The question now is what this court should do. I am in no doubt at all that the appeal must be allowed and the judge's dismissal of the care proceedings in relation to X must be set aside. I am equally clear that there must now be a part two, a full welfare enquiry in relation to X in relation to which directions will need to be given swiftly as to what evidence will be required and so on. The principal question is whether or not that hearing can be taken by His Honour Judge Brunning. I would have liked, I think, in terms of both stress, cost and time to have been able to send the matter back to the judge, but I do not think on balance that this court could properly do so. The judge has in effect prejudged the issue. The judge has said the threshold criteria are not met; that this is not a case for care proceedings. Whatever the outcome of part two, it may well be that one party or another would come away in the belief that he/she or they had not had a fair hearing as a result of the findings which the judge has made in relation to part one.

59. Therefore I have come to this conclusion that this case -- and indeed now the case of both children, because both children's cases must be heard together -- the case must now be listed before a different judge. Given that Judge Brunning is the designated judge, I think the better course, speaking for myself, would be to direct that the case be allocated to a circuit judge to be chosen by the Family Division liaison judge for the Midland Circuit, who will then allocate a judge who then can give directions and hear the matter as speedily as possible.

60. For those reasons, therefore, I would allow the appeal and give those directions.

61. LORD JUSTICE LLOYD: I agree that the parents' application for permission to appeal should be refused. It seems to me that there is ample material in the terms of the judgment for the findings that he made.

62. I also agree that the local authority's appeal should be allowed, and I agree with the order that my Lord proposes as regards the consequences of allowing the appeal.

63. LORD JUSTICE LAWS: I also agree that the local authority's appeal should be allowed and the parents' application for permission to cross-appeal should be refused, for all the reasons given by my Lord, Lord Justice Wall. It follows that I would hold that the threshold criteria are met in relation to X. I also concur in the orders proposed by Lord Justice Wall.

ORDER: Appeal allowed; interim care order in relation to X pending consideration of the matter by the circuit judge for a maximum period of 28 days, subject to further consideration by the circuit judge; the case to be listed for a directions hearing; detailed assessment of any Community Legal Service funding certificates; transcript to be prepared on an expedite basis.

(Order not part of approved judgment)