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Children: Public Law Update (Summer 2019)

John Tughan QC of 4 Paper Buildings reviews recent important Children Public Law cases.

John Tughan QC of 4 Paper Buildings

In this update I will consider recent decisions that touch upon the following issues:

• Uncertain perpetrator cases and the pool of perpetrators more widely

• Guidance on requests for clarification of judgments and correspondence with the trial judge

• A fact-finding appeal that deals with the role of clinicians, as opposed to experts, and potentially heralds a new approach

• Costs

• Deprivation of liberty and the interface with the Scottish jurisdiction.

Uncertain perpetrator cases and the pool of perpetrators more widely

B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 is a case which raised a question of principle.  The five-year-old female child was found to have gonorrhoea. The paediatrician then confirmed the diagnosis and spoke to the children in the absence of the parents but no disclosure of abuse was made.  Genital examination was normal.  The mother denied that sexual abuse could have taken place and suggested that the infection had come from a toilet seat in their (shared) home. Two other female children tested positive for gonorrhoea, the male child's tests were negative. Both parents returned negative tests.

The expert advised that "it is difficult to establish with any degree of certainty the exact source and causal link of the children's gonorrhoea. However in all the circumstances of the case sexual mode of transmission is more likely."  He was asked whether gonorrhoea could be transmitted from sitting on a toilet seat. His response was "very unlikely". In oral evidence he said that it was likely that the infection occurred earlier in May and that these children had been in contact with "multiple adults" but he did not have details of them or information as to whether they had infection.

The judge decided that there had been sexual abuse, based on the gonorrhoea finding.  In relation to the perpetrator of the abuse, the judge said this:

"I am not able to exclude [the father] as there must remain a real possibility of him having caused this infection in some way… in this case it cannot be said to have been established that there was a finite pool of perpetrators. Accordingly, I find nothing more than that the father is within a pool of possible perpetrators with other unknown males who may have had access to the children, or at least one of them, including the two young men in the family home. I am not able to reach a finding which is any more definite than that because the evidence would not allow such a finding to be made."

On appeal, Peter Jackson LJ reviewed the authorities and summarised the principles as follows:

• The very concept of the 'pool' of perpetrators is seeking to strike a fair balance between individual rights and child protection and there is no room for a finding of fact on the basis of 'real possibility', still less on the basis of suspicion. There is no such thing as a pool of one.

• The decision to place the person in the pool is not a conventional finding.  The person in the pool is not a perpetrator but a possible perpetrator.

• Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown. This is why it is always misleading to refer to 'exclusion from the pool'.

• A change of language might be appropriate.  The court should first consider whether there is a 'list' of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so.  Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: "Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?" Only if there is, should A or B or C be placed into the 'pool'.

• The pool of perpetrators relates to 'carers'.  That was extended to include non-parent carers (Lancashire).  It was "somewhat widened" (North Yorkshire) to include people with access to the child who might have caused injury.  It was never "anyone who had even a fleeting contact with the child in circumstances where there was the opportunity to cause injuries".

• The pool of perpetrators does not "extend to harm caused by someone outside the home or family unless it would have been reasonable to expect a parent to have prevented it: S-B at [40]."

• It must be shown that there genuinely is a pool of perpetrators and not just a pool of one by default.

• "Lastly, as part of the court's normal case-management responsibilities it should at the outset of proceedings of this kind ensure (i) that a list of possible perpetrators is created, and (ii) that directions are given for the local authority to gather (either itself or through other agencies) all relevant information about and from those individuals, and (iii) that those against whom allegations are made are given the opportunity to be heard. By these means some of the complications that can arise in these difficult cases may be avoided."

The appeal was allowed.  The judge had started from the wrong place and with a presumption that the father was in the pool of perpetrators.

Guidance on requests for clarification of judgments and correspondence with the trial judge

In the case of I (Children) [2019] EWCA Civ 898 the Court of Appeal were dealing with a case that involved two unexplained skull fractures to a 15-weeks-old baby.  The local authority case was that the mother had inflicted the injuries.  The judge found:

"In my judgment all this set the context for a sudden loss of control resulting in an injury to A inflicted or caused by an anxious, stressed mother. Alternatively, and there is some evidence for this from M herself in her police interview and in the children's reported conversations in the car [that] she left A unattended and was downstairs at the time."

The live ground of appeal was that the judge had failed to make a determination of facts.

The case is noteworthy because of the guidance given by King LJ on seeking clarification of judgments.  On granting permission to appeal, Moylan LJ had directed that clarification be sought.  When the clarification was received it was clear that the judge was saying unequivocally that she had found that the mother had inflicted injury.

The jurisprudence relating to clarification requests was set out by King LJ in the following way:

• In English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605. The Master of the Rolls, Lord Phillips, said:

"25. Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial Judge, the Judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial Judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings."

• In Egan -v- Motor Services (Bath) Limited Note [2007] EWCA Civ 1002, the Court of Appeal identified the parameters for such requests. In particular, Smith LJ said:

"50. The purpose of the judge providing a draft of the judgment before hand down is to enable the parties to spot typographical, spelling and minor factual errors which have escaped the judge's eye…Circulation of the draft is not intended to provide counsel with an opportunity to re-argue the issues in the case.

51. Only in the most exceptional circumstances is it appropriate to ask the judge to reconsider a point of substance… Letters such as the one sent in this case, which sought to reopen the argument on a wide variety of points, should not be sent."

• Re A and another (Children) (Judgment: Adequacy of Reasoning) [2012] 1 WLR 595 ("the Practice Note").  Munby LJ emphasised that the practice set out in English v Emery Reimbold applies as much to family cases as "ordinary, simple appeals".  He referred in particular to, what he described as: "the robust observations" of Wall LJ in Re M [2009] 1 FLR 117 para 36-39. In Re M, Wall LJ (at [36]) had said that it was "high time the family bar woke up" to English v Emery and the fact that it applies to family cases. It emphasises that there was a responsibility on both the advocate and the trial judge to consider whether additional reasons were necessary.

• In R (Mohamed) v Foreign Secretary (No 2)(CA) [2010] 3 WLR 554 (Mohamed), Lord Judge repeated the exceptional nature of a request for clarification.

• Finally, in relation to contact with the judge regarding his or her draft judgment, in Re C (Placement Order: Appeal) [2014] EWCA Civ 70, Macur LJ deprecated in the strongest of terms the actions of counsel for the local authority in having sent an email direct to the district judge in order to "clear misunderstandings" as to the thrust of her closing submissions which had apparently not been accepted.

• The Family Procedure Rules 2010 PD30A para 4.6, deals with "material omissions" from a judgment of the lower court:

"4.6  Where a party's advocate considers that there is a material omission from a judgment of the lower court or, where the decision is made by a lay justice or justices, the written reasons for the decision of the lower court (including inadequate reasoning for the lower court's decision), the advocate should before the drawing of the order give the lower court which made the decision the opportunity of considering whether there is an omission and should not immediately use the omissions as grounds for an application to appeal."

The Court of Appeal is clear about current practice.  The "exhortations as to the limitations on counsel in seeking amplification of a draft judgment over and above correction of typographical and factual errors" is a principle which applies equally to all areas of civil procedure, including family cases.  It was the perception of the Court of Appeal that requests for extensive clarification, going well beyond the perimeters identified in the authorities, have become commonplace in both children and financial remedy cases in the Family Court.  This practice is "not conducive to the interests of justice".  The Court would not give guidance or identify a "bright line" as to when a clarification request is appropriate but they must not be routine.

A fact-finding appeal dealing with the role of clinicians, as opposed to experts, and potentially heralds a new approach

In Re F (A Child) (Fact-Finding Appeal) [2019] EWCA Civ 1244 the trial judge had found that petechial haemorrhages had been inflicted by the father.  The experts in the case did not support that conclusion but one clinician did support it.  None of the medical witnesses had experience of petechial haemorrhages and sparing (areas with no haemorrhage) of the nature and in the pattern seen here.  The medical evidence did not provide an "easy fit" mechanism.  The judge concluded that there were two options open to the Court, namely  an unknown cause or "some form of applied compressive pressure".

The conclusion was expressed in this way:

"I am satisfied … that … the petechial haemorrhages to F were inflicted non-accidental injuries … It is not possible, nor is it necessary in my judgment, to determine precisely how he did so. I consider it most likely that it involved some form of compression and suffocation or smothering (which resulted in the clearly demarcated areas of sparing)".

The judgment was set aside because of the way the Judge had dealt with the medical evidence.  Moylan LJ declined to give general guidance but did say this:

"It is, of course, important that the court and the parties recognise the difference between treating professionals and those instructed for the purposes of providing expert evidence for the purposes of proceedings. As I have said, a treating professional will self-evidently have a very different focus to an expert witness. However, as Mr Stonor submitted, it would not support the proper and expeditious determination of cases if unnecessary and/or disproportionate obstacles were placed in the way of expert medical evidence being available to the court. In that context, it seems to me that a treating professional who is also an expert will in some cases be able to give expert evidence without all or even any of the requirements of Part 25 being applied. However, again as referred to above, this is a matter which requires broader analysis than can be undertaken in a single decision."


There have been two recent decisions on the issue of costs. 

Timokhina v Timokhin [2019] EWCA Civ 1284 is a private case but established the principle that the court could make an order for costs at any time and that included an order following approval of the main order.

RP (Appeal Costs) [2019] EWCA Civ 680 was a case in which the foster carer's appeal against a care order was allowed.  The Court of Appeal declined to make a costs order and set out the principles behind costs decisions:

"For many years, the general practice in proceedings relating to children has been to make no order as to costs save in exceptional circumstances. The principal reason for this approach, as recognised by Baroness Hale of Richmond in her judgment in Re S, is that, whenever a court has to determine a question relating to the upbringing of a child, the welfare of the child is the court's paramount consideration, and as a result "in such proceedings there are no adult winners and losers – the only winner should be the child" (paragraph 20) and "it can … generally be assumed that all parties to the case are motivated by concern for the child's welfare (paragraph 22). It follows that "costs orders should only be made in unusual circumstances", for example, as identified by Wilson J (as he then was) in Sutton London Borough Council v Davis (No 2) [1994] 2 FLR 569, where "the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable" (paragraph 26).

At paragraph 29, Baroness Hale added….it may well be that conduct which was reasonable at first instance is no longer reasonable on appeal. But in my view that does not alter the principles to be applied: it merely alters the application of those principles to the circumstances of the case."

Deprivation of liberty and the interface with the Scottish jurisdiction

In Salford CC v M (Deprivation of Liberty in Scotland) [2019] EWHC 1510 MacDonald J was dealing with the issue of a child placed in Scotland in circumstances that amounted to a deprivation of liberty.  The following are two noteworthy conclusions of the court:

• Re X (A Child) and Y (A Child) [2016] EWHC 2271 is not authority for the bare proposition that a child may be placed, without more, in a placement in Scotland not approved as secure accommodation by the Scottish Ministers pursuant to an order authorising the deprivation of the child's liberty made pursuant to the inherent jurisdiction of the English High Court. Rather, it is authority for the proposition that whilst the English court has power to make such an order, unless the Inner House of the Court of Session in Scotland agrees to invoke the nobile officium in respect of such a course of action, such placement may be without legal authority in Scotland.

• In deciding whether the regime applied to the child does amount to a deprivation of liberty, the court was satisfied that the regime of supervision, which can be characterised as at least 'thorough', if not 'unremitting', falls within the concept of continuous supervision or control or, to put it in the terms of the Storck criteria, amounts to confinement to a certain limited place for a not negligible period of time.