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G-L-T (Children) [2019] EWCA Civ 717

Lady Justice King grants an appeal against a finding made by HHJ Farquhar within care proceedings that a father had ‘failed to protect’ his son.

There were four children subject to care proceedings. The youngest, J, was aged 2. J was born prematurely and suffered from a number of genuine medical problems due to his prematurity.

J was admitted to hospital on 26 occasions prior to the care proceedings being issues in January 2018. HHJ Farquhar at first instance found that J's mother had fabricated or directly caused many of J's medical challenges, e.g. wearing a helmet to protect his head from seizures which didn't exist and failing to feed J through the Peg-J which he didn't, in any event, need.

On 9 January 2018, J was an inpatient at Southampton Hospital where his unit was covered by video cameras to monitor patient's condition. HHJ Farquhar described what was captured on video (quoted at para [10]):

"[1]…. His mother, M, can be seen slamming his face into the hard floor on four occasions in a very calm, deliberate and measured way. As a result of having seen this assault, questions have been raised as to whether any of the other medical issues from which he was then believed to suffer had been induced/inflicted/exaggerated by his mother and/or father. Importantly and significantly he does not appear to suffer from any of these issues now that he is in foster care."

Care proceedings were issued on 11 January 2018 in relation to all four children.

First Instance
At the conclusion of the Fact Finding hearing, HHJ Farquhar made six findings in respect of the mother, including causing a fracture, lying to heath care professionals, fabricating symptoms of medical issues, and causing J to suffer from subdural haemorrhage with retina haematoma. The mother did not seek to challenge these findings, and Lady Justice King observed that:

[16] "The judge's judgment and analysis in relation to the medical evidence is a model of its kind and could be open to no criticism"

However, upon considering the father's role, the HHJ Farquhar made a seventh finding as follows (quoted at para [17]):

"Finding 7: The father failed to inform the health care professions at any of the three times that he came into contact with them in October, November or December 2017 that J was no longer suffering from apnoea or seizures. This failure contributed to the continuation of the medication and oxygen that J was still receiving which were no longer required."

It had been noted that the mother was almost exclusively responsible for J's care and indeed the Judge noted (quoted at paragraph [20]):

"[98]…It was clear from his evidence, which I accept that he (the father) was reticent to get involved with any of the medical treatments required by J. In many ways this is a criticism of F because he appeared fairly detached from all of the knowledge in relation to his son's health."

Nonetheless, with regards to Finding 7, the Judge heard the father say in evidence that following on from the family moving house on the weekend of 29th September 2017:

"[148] That J did not suffer from any seizures that he saw once they had moved nor did he witness any apnoea"

In cross examination, the father stated that he believed that the medication which had been prescribed for the seizures was helping to reduce them and commented that, had the seizures happened when he was not there, he would not have seen them.

The judge went on to make the following finding (Finding 7) against the father:

"[152] I am also unimpressed that the father failed to mention this highly important information that J was no longer suffering seizures or apnoea to the health care professionals in October, November or December 2017 when he was able to do so. It is a serious omission. It is difficult to say why he did this and indeed perhaps not that important. The fact is that if he had voiced his concerns to either to Ms C, Ms M or Dr W then some action could have been taken which would have avoided his son receiving further medication which was not required. He failed to do this and this must be seen as an issue of parental neglect."

On 14 December the judge distributed a perfected judgment which amended paragraph 152 and added in seven new paragraphs expanding upon his reasons for making the finding.

The basis of the finding against the father was that he knew that J had had no seizures since the move, and that not only had he had three opportunities to inform relevant professionals that this was the position, but that he should have been proactive in doing so. The consequences of this "serious omission" was, per Finding 7, that J had received oxygen and medication which he no longer required.

The Appeal

Mr Newton QC on behalf of the father, submitted that the Judge's finding had been predicated on the following erroneous basis (para [42]):

"i) That the father knew that J no longer had seizures or apnoea;

ii) That, as a consequence, the father knew that J no longer needed medication and, in particular, oxygen;

iii) That the father should have told the medical professionals that J no longer had seizures/apnoea;

iv) That the father knew or believed the mother was misleading the medical professionals about the continuation of seizures and apnoea."

As Lady Justice King put it at para [45]:

"It is common ground that, unfortunately, for reasons which are not clear, the father's evidence which had been accurately recorded at [148] found itself two paragraphs later at [150] translated into a finding that the father, rather than saying that he had not seen any seizures, was saying, in terms, that J had had no seizures following the move."

The Judge agreed with Mr Newton that the Judge's error fatally undermined the basis of the finding.

Upon reviewing, in detail, each of the four steps set out by Mr Newton QC (paras [45]-[62]), Lady Justice King found the finding "unsupportable". The Local Authority accepted that the evidence did not support the finding.

The judgment sets out the legal context, referring to the recent Court of Appeal decision in Re W-C-T (Children) (no citation as yet) which reiterated that the appeal court will (para [63]):

"Only rarely contemplate reversing a finding of fact made by a judge who had had the benefit of hearing and observing witnesses"

Following Re B (A Child) (Care Proceedings: Appeal), [2013] UKSC 33, such a rare case would require the finding to have been made without evidence to support it, or to have been based on a misunderstanding of the evidence, or to have been one that no reasonable judge could have made.

Lady Justice King found this to be one of those rare cases. The evidence before the court did not support Finding 7.

The judgment goes on to explore that a finding of "failure to protect" is a threshold finding, which satisfies the threshold criteria independently of findings made regarding the conduct of a perpetrating parent. The finding, the Judge said, was a "bolt on" to the substantive findings against the mother. Such a finding would mean that any assessment of the father would proceed on the basis that he had, "deliberately or wilfully, permitted the mother to mislead the doctors about the true state of J's health".

Lady Justice King warned at [72]:

"I repeat my exhortation for courts and Local Authorities to approach allegations of 'failure to protect' with assiduous care and to keep to the forefront of their collective minds that this is a threshold finding that may have important consequences for subsequent assessments and decisions."

The appeal was allowed.

Summary by Lucy Maxwell, barrister, 1GC Family Law

You can read the full judgment of G-L-T (Children) [2019] EWCA Civ 717  on BAILII