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L (A Child) [2009] EWCA Civ 1008

Appeal by mother against a judge's conclusions after a fact-finding hearing and a refusal to allow a risk assessment on her parenting capacity. Appeal allowed and returned to court for final hearing.

The child subject to the care proceedings had been admitted to hospital with severe injuries and a fact-finding hearing was initiated. By the time of the hearing the child was with foster parents and the mother had separated from the father. At that hearing, the mother denied any involvement but the judge was unable to rule out either parent as a possible perpetrator. However she concluded her judgments by asking the local authority to “draw up a timetable to bring these proceedings to a conclusion with the minimum of delay for R”. She also refused a subsequent request for a risk assessment of the mother as a parent and the proposed timetable meant that the outcome of the care proceedings would be settled before the related criminal trial had opened. 

In this appeal, counsel for the mother argued that the judge had prejudged the outcome of the care proceedings and the refusal to allow the assessment was procedurally unfair and plainly wrong. Wall LJ agreed stating that the function of a fact-finding hearing is “emphatically not….to decide the outcome of the care proceedings”. He then considers who should sit on the final hearing and concludes that, despite the guidance of the Lords in Re B, this was an exceptional case in which a different judge should take the final hearing as

“care and adoption proceedings, which have rightly been described as being at the extremity of the court’s powers, must not only be fair, but must be seen to be fair”

He also goes on to comment on the interface between the care and criminal proceedings, concluding that the criminal proceedings should be heard first despite the consequent delay.

Neutral Citation Number: [2009] EWCA Civ 1008
Case No: B4/2009/1119
Her Honour Judge Katharine Marshall sitting in the
Portsmouth County Court on 1 April 2009 

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/10/2009
Before :

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Between :

CR (Appellant)

- and - 

Local Authority and the Guardian (Respondents)

L (A Child) 

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Robin Belben (instructed by Eric Robinson - Solicitors) for the Appellant
Simon Miller (instructed by the Local Authority and the Guardian)– for the Respondents

Hearing date: 27th August 2009
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Lord Justice Wall :
1. The mother of a child whom I propose to identify only by the initial R, seeks permission to appeal from a order made by Her Honour Judge Katharine Marshall sitting in the Portsmouth County Court on 1 April 2009 whereby she refused the mother’s application for permission to instruct Mr. Colin Luger of an organisation called Resolutions to carry out a risk assessment relating to the mother’s capacity safely to parent R.

2. I saw the application on paper on 12 July 2009, and directed that it be listed before a three judge court on notice to the other parties in the long vacation with the appeal to follow if permission was granted. I described the case as urgent, and invited the parties to consider carefully who needed to be represented. Pursuant to that invitation, only the mother, the local authority and the guardian appeared by counsel, the latter being jointly represented by Mr Simon Miller. The father, who is represented by the Official Solicitor (the OS) did not appear, although the OS had filed a statement supporting the mother’s appeal. R’s paternal grandparents, who are parties to the proceedings, and whose application for an independent assessment of themselves as carers for R was also refused by the judge on 1 April 2009, did not appear, although they put in a position statement also supporting the appeal and in which they state that, if the appeal is allowed, they would “instantly renew their own application for independent assessment by an independent social worker  and within the same timescales”.

3. I am extremely grateful to counsel for the submissions we received, and in particular to Mr Miller who, on the joint instruction of the local authority and the guardian, made submissions which were both well-judged and realistic.

4. On 27 August 2009, we made the following order in this case:

(1) we granted permission to appeal;
(2) we allowed the appeal and set aside the order made by the judge on 1 April 2009;
(3) we vacated the final hearing of the care proceedings fixed by the judge for 1-4 September 2009 and directed the parties forthwith to find a date  for the final hearing, that hearing to take place as soon as practicable after the hearing of the criminal trial of the mother and the father currently fixed for November 2009;
(4) we directed that the care proceedings be listed for final directions before the designated family judge  for Portsmouth (the DFJ) as soon as practicable after the conclusion of the criminal proceedings;
(5) we gave permission for the mother to obtain an assessment of her  capacity safely to parent the child who is the subject of the care proceedings from Resolutions, that body to report in writing to the judge prior to the final hearing of the care proceedings or as otherwise directed by the DFJ;
(6) we directed that the final hearing of the care proceedings be taken by a judge other than Her Honour Judge Marshall.

5. We reserved our reasons for this outcome, which we now give.

The issues raised by the case
6. In my judgment. this case raises a number of important issues. The first is that it is a salutary reminder of the care which judges need to take when conducting what have become known as “split hearings” in care proceedings. The second is the need for close liaison between those responsible for care and criminal proceedings arising out of the same set of serious injuries suffered by young children. Thirdly, and above all, it is a timely remainder that process in family proceedings is important, and that care and adoption proceedings, which have rightly been described as being at the extremity of the court’s powers, must not only be fair, but must be seen to be fair.

7. The case also manifests a lamentable time-table. The subject child was born on 31 October 2007, so he is now 22 months old. On 23 April 2008, he was admitted to the Southampton General Hospital suffering from extremely serious injuries, all of which were, and have been found by the judge to be non-accidental. The local authority, Southampton City Council, began care proceedings on 7 May 2008. Yet more than 15 months later not only has there been no final hearing of the care proceedings, but the effect of our order is to build in still more delay, albeit, one hopes, delay which will be limited in its scope and which will provide the judge who takes the final hearing with substantial additional information with which to reach a conclusion.

The facts
8. As the case is ongoing, I propose to say only that which I think necessary for the resolution of the appeal. R’s parents are unmarried, and R is their only child.  His father, LL, is 21. He was assessed in the proceedings by Dr Nigel North, a consultant clinical psychologist, who reported on 12 September 2008. Dr. North’s view was that:-

The principal difficulty faced by (the father) is that he is able to understand simple information but cannot retain this information when trying to weigh up decisions or answers. In addition, his problems with verbal comprehension makes it extremely difficult for him to provide considered and accurate answers. He must be considered as a vulnerable adult in terms of his cognitive problems and full scale IQ.

9. The consequences of Dr. North’s report and subsequent evidence were; (1) that the OS was appointed to represent the father; and (2) that he did not give oral evidence before the judge. As a result, the judge was deprived of the opportunity to assess his credibility, and the mother was deprived of the opportunity to cross-examine him on R’s injuries.

10. It is, however, plain from Dr. North’s report that the father had spent many years in foster care. The evidence filed by his mother and stepfather, the paternal grandparents, was that they had always experienced him as a difficult child, and that his behaviour had been extremely difficult to manage from an early age. It was said that  from the age of five or six he would kick other children and threaten people with knives, and that, generally, they could not cope with him.  He had first been accommodated when he was about 7.

11. The mother, CR, is 23. She herself had not previously come to the notice of the local authority, although her brother had spent some time in care. She accepts that she has abused alcohol in the past, although there is no evidence that she is currently doing so. Both parents also admit occasional cannabis use.

12. The parents met towards the end of 2006, and R was conceived in early 2007. During the relevant period, the parents and R lived together in Southampton, but separated in mid-September 2008, when the mother left the father.  There is no suggestion that they remain a couple or are intending to reconcile.

13. The event which brought about the institution of the care proceedings was R’s admission to hospital on 23 April 2008. For present purposes it is, I think, sufficient to reproduce in its entirely the document which the local authority presented to the judge for the finding of fact hearing. This reads as follows: -

The Local Authority contend that R has suffered significant ill treatment within the meaning of Section 31 (9) of  the Children Act in the care of his parents and has suffered significant impairment of his proper physical and emotional development as defined under Section 31 (9) of The Children Act.

Findings sought on behalf of the Local Authority

(a) Injuries sustained by R

The Court is asked firstly to make findings that R suffered the following injuries whilst in the care of his parents.

On the 24th April 2008 R was observed to have bruising to his chest, right side of his face, left side of his face, bruise behind the left ear lobe, red mark on the right of his neck and bruising on the right thigh

CT and MRI scans of R’s head showed bilateral and subdural effusions,

An Ophthalmic review showed evidence of bilateral pre-retinal haemorrhages

(b) Circumstances and causation of injuries

The Local Authority would invite the Court to consider the explanations reached and to invite the Court to find that the injuries were most likely to have been non-accidental involving unreasonable use of force in relation to a child of this age.

(c) Bruising

In relation to the bruising on the right side of R’s face mother’s explanation is that R himself caused this swinging a rattle around in his hand and banging his face.

In relation to the bruise on the right cheek mother explained to the Hospital that R had caused this to himself by rolling over and that he does not have good head control.  It is mother’s contention that his head flopped down whilst he was on his stomach causing him to hit his left cheek and left ear which had left a bruise. (see paragraph 16 of mother’s statement).  It is the contention of the Local Authority that it is not credible that R was responsible for the infliction of these injuries.  If they were caused in the way suggested it is highly suggestive of lack of appropriate supervision.

In relation to the bruise on the left hand side of R’s ribs under his nipple it is mother’s contention that it was probably caused by herself accidentally whilst holding R.  This is not a common ste for bruising on a child of this age and again the Local Authority would invite the Court to reject mother’s explanation (as set out in paragraph 17 of mother’s statement).

In relation to the bruising to the left mother’s explanation is that R had been put down to sleep in his cot at the opposite end to where his changing mat was fixed and that he had slept in an awkward position and may have caught his leg in the middle of the night whilst tossing and turning.  The Local Authority would again invite the Court to reject mother’s explanation as being implausible and in considering the age of the child and the number of bruising would invite the Court to find that the injuries were occurred in a non-accidental manner.

(d) Head Injuries

Parents have put forward no explanation for the bilateral subdural effusions which were picked up on the CT and MRI scans.  In the absence of any explanation the preliminary medical opinion is that the appearance of this trauma is most likely due to a non-accidental head injury.

(e) Rib Fracture

The only potential explanation offered by parents for the rib fractures is set out by mother in paragraphs 5-6 of her Statement.  The explanation given is of a nappy box falling on top of R.  The Local Authority do not accept this is a potential explanation for the rib injuries.  It is not a mechanism consistent with the injuries observed and no medical treatment was sought by the parents on that day and a subsequent medical appointment made on the 10th was cancelled by the parents.

(f) Bilateral Pre-Retinal Haemorrhages

Parents have no explanations of any incident which could have lead to this injury.  In the absence of any explanation the Local Authority would invite the Court to accept the medical opinion set out by Dr Michael Roe, Consultant Paediatrician that “these findings make a diagnosis of significant physical abuse highly likely and there is no other medial diagnosis that would fit these findings”.

Likely Perpetrator
If the Court accepts the contention of the Local Authority that the injuries suffered are as a result of non-accidental injury the Local Authority would invite the Court to attempt to identify the likely perpetrator of the injuries.  It would be the contention of the Local Authority at the current time that R was in the care of his parents at the time of the injuries and that neither can be excluded as a potential perpetrator.

Obtaining of medical treatment
The Local Authority would further invite the Court to find that there was an unreasonable delay by the parents in obtaining proper medical treatment.

(a) Mother sets out in her Statement the incident of the 9th April.  It is believed mother could account for the rib injuries.  This involves a box of twenty nappies falling on top of R and him being distressed.  Despite no medical treatment was sought that day and indeed a medical appointment the following day was cancelled.

(b) Mother stated at the Hospital that the day prior to Hospital presentation R had had a short episode whilst in mother’s arms when he went floppy and appeared unconscious for ten seconds.  Despite this no medical treatment was sought by mother.  Mother also describes R as being unwell all day on the 22nd but no medical treatment was sought until the 23rd April when mother tool R to the Doctors and was advised to take him immediately to Hospital.  It is the contention of the Local Authority that any child suffering the injuries that R had suffered would have been visibly unwell to any reasonable carer who would have seen the need to seek Hospital treatment.

Failure to Protect
In the event of the Court making a finding that either of the parents was the perpetrator of the injuries upon R the Local Authority would invite the Court to make a finding that the other parent had failed to protect.

Emotional Harm
It is the further contention of the Local Authority that any child having suffered the ill treatment of R would also have suffered significant impairment of his proper emotional development as defined by Section 31 (9) and the Local Authority would further rely on the evidence of Dr Michael Roe and the Hospital staff that R was observed to exhibit “a frozen watchfulness” (see E2 of the Court bundle).

14. From this document it will be seen that the injuries to R were extremely severe, and, in the absence of clear medical evidence to the contrary, can in the case of a non-ambulant child properly be described as paradigmatic of abuse. There was, however, an abundance of medial evidence that the injuries were non-accidental, none of which, in the event, was challenged.

15. A “finding of fact” hearing took place before Judge Marshall on 16-20 February 2009, and her reserved judgment is dated 27 February 2009 (although the document itself says 27 February 2008). It is not clear from the documentation available to this court either why a split hearing was deemed necessary or why, given the strength of the medical evidence, it had not taken place at a much earlier stage. Neither counsel was able to assist us on these points. No criticism can be levelled at Judge Marshall for conducting such a hearing, but this court has said, time and time again,  that both that the reasons for a “split hearing” and the precise findings to be made by the court should be spelled out. No criticism can be made in this case in relation to the second aspect. Speaking for myself, however, I doubt that a separate finding of fact hearing was necessary.

16. As at the date of the finding of fact hearing, R was living with foster parents under an interim care order and having regular contact with his parents. Unbeknown, it seems, to the judge, the mother was in the process of undergoing an assessment of her parenting capacity by the local authority. She had, at this point, of course separated from the father, although this is not a fact mentioned by the judge in either or her judgments.

17. The mother did not file a position statement for the finding of fact hearing, but her statements make it clear; (1) that she was denying responsibility for R’s injuries; and (2) that, in her view, the bruising was accidental.  The local authority summarised her position in the words “There is also an acceptance on behalf of mother that there was a failure  to obtain immediate medical attention and that  R “may have suffered emotional harm as a result of the abuse suffered”.  The OS filed a statement on behalf of the father denying  responsibility for R’s injuries. The maternal grandmother also filed a position statement denying any responsibility for R’s injuries, as did the paternal grandparents

18. The judge’s findings of fact, which closely followed those sought by the local authority, were not appealed. As I have already indicated, none of the medical evidence was, in the event, challenged. The judge summarised the mother’s position in paragraph 8 of her judgment in the following words:-

The M(other) accepts that she must be considered in the pool of perpetrators, but maintains that she is not responsible for the injuries to R. She suggests that the weight of the evidence points towards the F(ather)  as perpetrator. She denies that she failed to protect R and maintains that she was not aware that R had been injured. She accepts limited failure to seek appropriate medical care.

19. The judge limited “the pool of potential perpetrators” to R’s parents, but was “unable to make a finding with sufficient certainty that it was one or the other of M(other) or F(ather) who inflicted R’s injuries, or to rule either of them out, and therefore the court must consider that it may have been either of them or both”. In my judgment, no criticism can be levelled at the judge for so concluding. Although the finding of fact hearing in the instant case preceded the decision of the House of Lords in Re B (Children) (Care Proceedings Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11 (hereinafter Re B (HL)) this court has expressed the view that nothing in Re B (HL)  requires the court to identify an individual perpetrator if such an exercise is not possible: - see the judgment of this court in NH v A County Council and others: Re D (Children) (Non-accidental injury) [2009] EWCA Civ 472, [2009] 2 FCR 555.

20. Having gone on to consider the failure to seek medical assistance, and the position of the grandparents on both sides, the judge concluded her judgment with the following paragraph:-

52. It has been suggested that there is sufficient evidence upon which the court could make a finding that there has been a global family failure to protect R. It follows from what is set out above that such a finding would indeed be appropriate.

21. Had the judge’s judgment ended at this point, it would, in my view, have been fireproof. Most unfortunately, however, she went on to say:-

and in the light of that and the rest of my judgment, (the local authority) are invited to draw up a timetable to bring these proceedings to a conclusion with the minimum of delay for R.

22. In my judgment, these words are capable of only one meaning, and that is the meaning given to them by the mother and those advising her: it is that the judge has decided the rest of the case. To put the matter another way, the judge’s view plainly was as follows: the fact that there has been a “global family failure” to protect the child and the fact that she could not rule out the mother as perpetrator meant that R must be the subject of a care order, and adopted outside the family.

23. In my judgment, the citation from the judge’s judgment set out in paragraph 21 above is a non-sequitur and a serious error on the part of the judge. That she meant what the words appear to say is plain from subsequent events. On 27 February 2009, the judge directed the local authority to file an serve its final care plan and  placement order application by 30 April 2009. The same guardian was appointed in the placement order proceedings, which were to be consolidated with the care proceedings. Furthermore, when on 17 June 2009 the judge became aware that the criminal trial of the mother and the father was due to take place in September 2009, she made an order of her own motion, of which we only have a draft, in which she listed the final hearing of the care proceedings for 1-4 September, that is to say prior to the criminal trial.

24. It is, unfortunately, impossible to reach any other conclusion than that the judge had prejudged the outcome of the care proceedings. It is, unfortunately, equally impossible to come to any other conclusion than that her assessment of that outcome plainly influenced the decision which is in fact the subject matter of the appeal.

The local authority’s own risk assessment of the mother and her parenting capacity
25. A curious, and it has to be said , unsatisfactory feature of the case is that on 21 April 2009, two family social workers employed by the local authority  completed a parenting assessment of the mother. In paragraph 2.3 the assessment  makes a specific reference to the judge’s findings of fact hearing, and the “global family failure” to protect R.  It is also plain from paragraph 4.3 that the workers have read the judge’s judgment dated 27 February 2009.  The referral to the social workers had, however, been made on 10 November 2008.

26. The two social workers describe seven sessions with the mother between 7 January and 24 February 2009 (all of which she attended, and all of which, of course, pre-date the judge’s judgment of 27 February 2009). Their report, which is detailed  and comprehensive, describes the mother as presenting to them as “a young woman who was committed to undertaking any work with a view to achieving the return of her child”. The report concludes with this paragraph:-

It is our view that (the mother) has demonstrated that she has the capacity and the motivation to work towards making the changes that would be required to meet the needs of her child (or children) in the future.  However, should the rehabilitation plan be delayed (whilst resources are accessed or if such resources were not available) or fail to achieve the changes necessary, this delay would not then be in (R’s) time frame in terms of meeting his needs for a secure and permanent placement.

27. This report, of course, post dates the finding of fact hearing and the order under appeal, although it was commissioned prior to both. It is plain, however, that the local authority does not intend to rely upon it, since its final care plan is for adoption outside the family. Furthermore, when the judge became aware of its existence she made an order (on 17 June 2009, in the same order which lists the final hearing for 1-4 September) directing the two workers to file a further statement explaining their understanding of the judgment of 27 February 2009, that statement to be filed by 15 July 2009.

28. A copy of this statement is in our papers. It does not explain why the two workers did not discuss the finding of fact judgment with the mother, although it states in terms that, having discussed the issues extensively  with the case holding social worker and her senior practitioner, the workers’ sense was that they had “fully taken into account the finding of facts judgment”.  Moreover, they had concluded that “due process would consider all the reports before the court and the most appropriate plan for R, accepting that this might be permanence”.

29. In my judgment, the only possible criticisms which can be levelled at the two workers is that they did not discuss the judge’s finding of fact  judgment with the mother before completing their report. They were, in my judgment, plainly right to file their report, and plainly right to assert, as they do in their second statement, that the court would consider “all reports” before reaching a conclusion in relation to R’s welfare.

30. The reason the two workers give for their instruction in November 2008 is that the assessment was requested by the local authority “to avoid delay in making plans for R”.  Whilst this is, of course, an admirable aim, the production of the report on 29 April 2009, and its subsequent abandonment by the local authority seem to me to have a number of highly undesirable consequences.

31. Firstly, of course, it demonstrates very muddled thinking on the part of the local authority. The purpose of a fact finding hearing is to inform subsequent assessments, so that any such assessments can be made in the knowledge and on the basis of the judge’s findings of fact. In particular, it is of the greatest relevance for the assessor to gage the parent’s reaction to the judge’s findings. That, plainly, did not occur in the instant case.

32. More importantly, perhaps, for the purposes of this case, the existence of the report heightens the sense of unfairness felt by the mother. If the judge’s time-table is allowed to stand, the final hearing will take place between 1 and 4 September. The local authority will be seeking  final care and  placement orders and will not be relying on its workers’ assessment of the risks posed by the mother. The judge, by her order under appeal, has refused to order any further assessment. Thus although it will be open to the mother to insist that the two workers are called to give evidence, the judge has made it plain that she is not minded to give any weight to the workers’ report. The likelihood thus is that placement and adoption orders will be made.

33. All this, of course, does not take into account the fact that the final hearing of the care proceedings is currently time-tabled to take place before the hearing of the parent’s criminal trial – a matter to which I will return.

The order under appeal
34. On 1 April 2009, the mother applied to the judge for permission to instruct Mr Luger to carry out a risk assessment on her.  The judge gave an extempore judgment dealing with the point on the same day. She had declined to consider the application immediately after delivering her finding of fact judgment; (1) because at that point there was no formal application before the court; and (2) because she felt that time was required for the parties to reflect on her findings “particularly in relation to making further applications”. She referred to her finding of a “global family failure” to protect R  and to the instruction of the local authority in the final paragraph of her judgment, which I have already set out.  She then added:

“The reason for my saying that, I would have thought, would be fairly clear from the conclusions I had reached.” 

This, to my mind, is a further indication that the judge had made up her mind on the final disposal of the care proceedings.

35. After further references to her findings of fact, the judge completes her judgment with the following paragraphs: -

4. I have been referred to two authorities, Re B (Care Proceedings: Expert Witness) [2007] EWCA Civ 556, [2007] 2 FLR 979 (Re B) and Re K (Care order) [2007] EWCA (Civ) 697, [2007] 2 FLR 1066 (Re K).  They are authorities which are well-known to judges and are often relied upon in support of applications for assessment by parents.  In neither of these cases does it appear that there had been the sort of very in-depth consideration in relation to those seeking further assessments that this court has already undergone through the fact finding exercise.  Although the reasons in Re B and Re K for allowing these assessments are very much based around fairness, the need for parents to feel that they have been given every opportunity to put forward their case and to be fully considered as carers for their children in the future, it seems to me it cannot be the case that every parent is entitled as of right to an independent expert assessment in all cases.  If there are exceptions to that, as I think there must be, this is exactly the sort of case in which the court must say to itself ‘Are these assessments necessary? Are they going to provide information which the court does not have but must have in the interests of fairness to reach a conclusion as to the appropriate disposal of the proceedings?’  It is accepted that in this case it is very clear that there is a risk that at the end of the day (R) may be lost from this family, but that is a situation reached at a stage in the proceedings when the court has already undergone a considerable assessment of the family circumstances and reached the conclusion that I did, that there has been global family failure to protect.

5. Even where a court were to reach such decisions, I also accept that it does not necessarily rule out any further assessments, but the remaining key issues in this case are the risks to (R) and whether there are any family members who would be capable of caring for him and protecting him.  Whilst I could hear from Colin Luger or Kate Kirk as to their assessment following interviews with the mother and with the grandparents, and whilst I hear what is said by Mr Belben that sometimes very useful further information can come out of such assessments, how will the court be able to approach that information when I have already drawn conclusions about the lack of openness and honesty about those who now seek further assessment?  In terms of whether risk assessments will add anything useful to these proceedings, I am not persuaded that they would.

6. I go on to consider whether in any event the court should order them, to allow those who have made those applications to feel that they have been fairly considered.  In this case, to allow these assessments would cause delay.  The local authority are planning to put R’s case before the Permanency Panel on 22nd April.  It has been suggested that these further assessments could report within 6-8 weeks, possibly by the date of the Issue Resolution Hearing.  However, the local authority will not be able to put (R)’s case before a panel until those assessments are completed and available, which means that a panel meeting is likely to be delayed until June and an Issue Resolution Hearing fixed some time after that.

7. R  is now 16 months old.  It is likely that any plan for permanence by the local authority, who oppose these assessments, would be looking at adoption. Given R’s age, he is moving towards the upper end of the time limits for a child for a successful adoption. Any delay moves him closer to that deadline.  There are occasions when it is appropriate to allow such delay.  It seems to me those are cases where there is some realistic possibility of an assessment being positive, where the delay may be considered planned and purposeful.  I don not believe that those case falls into that category.  I therefore form a view that to allow these assessments, which would inevitably cause delay in dealing with matters for R, would be detrimental to R’s welcome in the long term.

8. If it is not already clear in my use of the word ‘fairness’, I have considered certainly Article 6 and Article 8 rights.  I think I have made it clear that my decision is based on the welfare of the child in terms of delay.

The argument for the mother on the appeal
36. Mr. Belben’s submissions were very simple.  The judge’s fundamental error was contained in the final paragraph of her finding of fact judgment (which I have set out at paragraph 21 above). She had prejudged the outcome of the care proceedings. She had thus closed her mind to any outcome other than placement for adoption. She had thus prevented the mother from placing relevant  evidence before the court in relation to outcome. Her refusal to permit an assessment by Mr. Luger was thus both procedurally unfair to the mother and plainly wrong.   Furthermore, he submitted that the mother’s perception of the judge as having prematurely made up her mind against any attempt to  rehabilitate R to her care rendered it necessary for the final hearing of the care proceedings to be taken by a different judge.

The argument for the local authority and the guardian
37. For the local authority and the guardian,  Mr Miller made a valiant attempt to support the judge. He argued, firstly, that it is not in every case that fairness requires a parent to obtain an independent assessment. The judge had been right to distinguish Re K and Re B. Secondly, he submitted that the judge had properly directed herself as to all the various issues  involved, including fairness. Given, therefore, that she was exercising a judicial discretion, this court should not interfere with her conduct of the balancing exercise. She had reached a legitimate conclusion, and one with which this court should not interfere.

38. The judge, moreover, was the judge to whom the case had been allocated. Whilst Mr Miller saw the force of the argument (were the appeal to be allowed) relating to the mother’s perception of unfairness, he nonetheless submitted that, as the allocated judge, it would be wasteful of resources and likely to involve additional delay if the case were now transferred to another judge.

39. In my judgment, Mr. Belben’s submissions are to be preferred on the facts of this particular case. Despite the skill and moderation with which the contrary was argued by Mr. Miller, I am in no doubt at all that the judge’s decision to refuse the mother an independent assessment was, on the facts of this case, plainly wrong.

40. In my judgment, as I have already made clear, the judge commits a fundamental error in the final phrases of her finding of fact judgment. To my mind it is plain that, having found the facts as she did, she concluded at that point that the only possible outcome for the care proceedings was that R should be adopted.  That, to my mind, demonstrates a misunderstanding of the split hearing process. The judge’s function was (1) to decide whether or not the threshold criteria under section 31 of the Children Act 1989 were satisfied; and (2) to make findings of fact upon which assessments of the parents could then be made. It was emphatically not her function at that point to decide the outcome of the care proceedings, however clear she though that outcome might be.

41. Whilst I do think the judge was wrong  to distinguish Re K and Re B  in so far as they relate to fairness and due process, I also think it a great pity that she was not referred to the decision of his court in Re M-H (Assessment : Father of half-brother) [2006] EWCA Civ 1864, [2007] 2 FLR 1715. In that case, the father of an older child born to the mother, for whom he was caring, sought to be assessed as the carer of a younger child born to the mother of whom he was not the father, but for whom the mother was incapable of caring. His application for an “independent viability assessment” was refused by the judge, and the father appealed to this court, which allowed his appeal, and ordered the assessment.

42. Giving the first judgment in this court, with which Carnwath and Thorpe LJJ agreed, I stated:-

However, in my judgment, (counsel for the appellant) is right when he submits that the exercise of a judicial discretion in a care case is an amalgam of expertise from a number of disciplines, an essential part of which is or should be competent social work assessments which the judge can then appraise and accept or reject. The production of these assessments however is not the province of the judge. Accordingly, in my judgment, to do proper justice to K's interests in the instant case, the judge required the thorough independent social work input by means of a viability assessment which Mr F had sought. The judge denied himself that input whilst at the same time recognising that the local authority had failed to provide it. As I have already stated, his reliance on the guardian to do so was in my judgment misplaced and the result, as I see it, is a flawed exercise of judicial discretion. In my judgment and for this reason alone, Mr Rowley is entitled to succeed in this appeal. Ground 1 of the appellant's notice is in my view made out.

43. In the instant case, the guardian (whose final report we have) concludes that there is no possibility of reunification to any member of the family, and supports the local authority’s plan for placement and adoption. She opposes any further adjournment.  She seems to reach that conclusion on the basis of the judge’s findings of fact.

44. Whilst I wish to make it clear that I make no criticism of the guardian for expressing her professional opinion,  her investigations and report do not, in my judgment, “plug the gap” left by the local authority’s abandonment of its own assessment and the judge’s refusal to  order an independent assessment as sought by the mother.

45. In my judgment, therefore, the judge’s refusal to order the assessment sought by the mother was plainly wrong. It is not only unfair to the mother on the facts of the case, but the judge has fallen into the trap of prejudging the case at the finding of fact stage, and imposing her premature assessment of the outcome of the care proceedings without giving the mother an opportunity to present her case fully to the court.

Who should take the final hearing?
46. Technically, what I have said so far is sufficient to dispose of the appeal. However, our order has consequences. The first of these is that it will plainly be impossible for Mr. Luger to investigate and report by 1 September. The hearing fixed for that date must, therefore, and will be vacated.

47. I accept Mr. Belben’s submission that the mother has no confidence that she will receive a fair hearing from the judge. Whilst, speaking for myself, I have no doubt that the judge would be able  to read and absorb the lessons of this judgment and decide R’s welfare objectively at the final hearing in the light of all the evidence, I nonetheless have come to the clear conclusion that the perception of fairness requires the final hearing to be taken by a different judge.

48. I am very conscious that in reaching this conclusion I am going against the general rule stated by Baroness Hale of Richmond in Re B (HL) in which, having identified (in paragraph 74) the two questions which have to be asked in care proceedings) she stated in paragraph 76 of her speech: -

But the finding of those facts is merely part of the whole process of trying the case. It is not a separate exercise. And once it is done the case is part heard. The trial should not resume before a different judge, any more than any other part heard case should do so. In the particular context of care proceedings, where the character and personalities of the parties are important components in any decision, it makes no sense at all for one judge to spend days listening to them give evidence on one issue and for another judge to send more days listening to them give evidence on another. This is not only a wasteful duplication of effort. Much useful information is likely to fall between the gaps. How can a judge who has not heard the parents give their evidence about how the child's injuries occurred begin to assess the risk of letting them care for the child again? The experts may make their assessments, but in the end it is for the judge to make the decision on all the evidence before him. How can he properly do that when he has heard only half of it?

49. I would like to re-iterate that I fully accept and agree with the general proposition stated by Baroness Hale of Richmond in this paragraph. As this court, however, has made clear on previous occasions, there must be exceptions to the rule. One of them, exemplified both in this case and in Re G and B (Children: Fact-finding hearing) [2009] EWCA Civ 10, [2009] 1 FLR 1145 (Re G and B) is where one of the parties, for good reason, has lost confidence in the judge.  In Re G and B the judge had found as a fact that the father had suffocated a child. That was not a finding sought by the local authority, and the father’s advisers, as a result, had deliberately not sought to call evidence on the point. This court decided that the welfare hearing should be taken by a different judge: - see the reasons given at paragraphs [23] et seq. of this court’s judgment in that case.

50. In my judgment, for all the reasons hereinabove set out, the interests of justice overall require the final hearing of the care proceedings to be taken by a different judge.

51. I very much hope that the reasons set out above explain why I identified in paragraph 6 above that this case was a salutary reminder of the care which judges need to take when conducting what have become known as “split hearings” in care proceedings.  Not only do judges need to examine each case carefully in order to decide whether or not a split hearing is called for and to identify precisely  the issues which need to be decided at such hearings: what is also required is that a rigorous intellectual discipline is applied to such a hearing, so that the judge conducting it does not overstep the mark and answer questions more fitted to the welfare stage of the proceedings, when the judge considers the best - or least worst - outcome for the child in the light of the findings made and the assessments undertaken by others consequent upon the judge’s findings of fact.

The interface between the care and the criminal proceedings
52. I am very conscious that a care case can give a very different appearance in this court to that which it shows on the ground. I am therefore reluctant to be over critical in what appears to me at least to be a wholesale ignorance in the care proceedings of what was happening in the criminal proceedings. This court has on numerous occasions reiterated the need for there to be close liaison between the court having the conduct of the care proceedings and the court having the conduct of concurrent criminal proceedings. The most recent of these occasions, as it happens, also involves the Portsmouth County court: see: -  SW and KSW v Portsmouth City Council (Re ISW, AJW, EDW (Children) [2009] EWCA Civ 644. I do not propose to repeat what I said in paragraphs  36-47 of my judgment in that case, although I do wish to re-iterate their message.

53. In the instant case, however, there is a particular relevance  in the interplay between the criminal and the care proceedings. The father is represented by the OS in the care proceedings. He did not give oral evidence to the judge in those proceedings. We have, however, been shown the indictment in the criminal proceedings. It is plain from this that the prosecution has nailed its colours firmly to the mast.  The father alone is charged with inflicting and causing grievous bodily harm to R under section 18 and 20 of the Offences against the Person Act 1861. He also is also charged with assault occasioning actual bodily harm  contrary to section 47 of the same Act. The mother is jointly charged with cruelty to R contrary to section 1(1) of the Children and Young Persons Act 1933, and the mother is also solely charged with cruelty, the particulars being that she “wilfully neglected, abandoned or exposed (R)” in a manner likely to cause him unnecessary suffering or injury to health”. Both are also charged jointly with possession of cannabis.

54. We were told that the father has been found fit to plead. The mother has filed a defence statement indicating an intention to plead not guilty to the allegations against her.

55. A number of important issues arise in relation to the criminal proceedings. The first is that we were told that the criminal trial, originally scheduled for September, has been adjourned to November. This was on the application of the defence, which objected to the criminal trial following hard on the heels of the care proceedings which the judge – with full knowledge of the September fixture for the criminal trial - had ordered in for 1-4 September.

56. The second is that whilst the mother was denied the opportunity to cross-examine the father in the finding of fact hearing (and may well be denied the same opportunity if the final hearing of the care proceedings were to take place on 1-4 September) she will not be denied that opportunity in the criminal proceedings – assuming, of course, that the father elects to give evidence.

57. Thirdly, what happens to the judge’s findings of fact if the father is convicted? A jury would have found, beyond reasonable doubt, that he inflicted the injuries. Whether such a finding supersedes the judge’s inability to distinguish between the parents as perpetrators was a question raised but not fully argued before us. But on any view; (1) the outcome of the criminal trial is plainly relevant to the outcome of the care proceedings; and (2) the criminal proceeding are likely to throw up material, not currently available, which, in turn,  is likely to inform the final hearing of the care proceedings.

58. Against this background I have to say that I find the judge’s decision to list the care proceedings for 1-4 September to be concluded in advance of the criminal trial comprehensible only on two bases. The first is the laudable desire to avoid further delay. The second, however, is, in my judgment, impermissible, and is a further instance of the fact that the judge has pre-judged the case. Her decision can really only be explained on the basis that she thought the parents guilty, and the outcome of the care proceedings inevitable.

59. In my judgment, this is plainly a case in which, in the absence of powerful considerations to the contrary, the criminal proceedings should be heard first, and it is a thousand pities that they have been adjourned to November  due to the judge’s listing of the care proceedings for 1-4 September. I am, however, satisfied that the delay which will now occur as the result of our order is purposeful, and is likely to provide the judge taking the final hearing of the care proceedings with important information which is currently not available.

60. In case it is not apparent from what I have set out above, I wish to state as clearly as I can that nothing in this judgment is designed to indicate what the ultimate outcome of the care proceedings will be. That will be a matter for the judge taking the final hearing to decide on all the evidence available to him or her at that hearing. I am, however, satisfied that the order which we made on 27 August is the right one, and that, having given permission to appeal, the mother’s appeal must be allowed for the reasons I have given.

Waller LJ
61.  I agree.

Ward LJ
62. I also agree.