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W (A Child) [2009] EWCA 1597

Application for permission to appeal against order that there be no fact-finding exercise into child's death. Application refused.

Case No: B4/2009/0238
Neutral Citation Number: [2009] EWCA Civ 1587
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 18th March 2009

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(DAR Transcript of
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Ms F Judd QC and Mr A Leong (instructed by Buckingham County Council) appeared on behalf of the Appellant.
Ms M Cudby (instructed by Horwood and James Solicitors) appeared on behalf of the 1st Respondent, the mother.
Mr D Cadman (instructed by Bramwell Browne Odedra Solicitors) appeared on behalf of the Second Respondent, the father.
Ms M Jones appeared on behalf of the 3rd Respondent, the Guardian Ad Litem.
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(As Approved)

Crown Copyright©

Lord Justice Thorpe:
1. On 20 January HHJ Horowitz QC, sitting in the Milton Keynes County Court, held a case management conference, or a preliminary to a case management conference, as a result of which an order was drawn to this effect:

"The court, in the exercise of its discretion, decided not to conduct a fact-finding exercise to ascertain the precise causation of M's death."

2. That ruling did not please the local authority, who applied in this court for permission to appeal, an application that was put before Wall LJ on the papers.  On 3 March he ruled that the application should be listed on notice with appeal to follow if permission granted.  Accordingly, today we have Ms Frances Judd QC leading Mr Leong, who appeared below for the local authority.  She is supported in her application by Mr Cadman who represents the father.  She is opposed by Ms Cudby who represents the mother and also by Ms Maggie Jones who represents the guardian ad litem.  We have to rule on the local authority's bold submissions that HHJ Horowitz was plainly wrong in reaching that discretionary conclusion.  So I will first endeavour to establish the background. 

3. The mother was born on [date] 1981, and accordingly she was just short of her 17th birthday when on [date] 1998 she gave birth to M in hospital.  There were considerable concerns as to her early standards of care, and both the social services and the health authority were involved on a number of occasions.  In particular there was an ambulance call on 4 August which was a tragic premonition of M's death on 13 August 1999.

4. The mother was interviewed on a number of occasions at the end of the month, in the course of which she made what can loosely be described as a confession.  Accordingly in the following months she was charged with murder and remanded in custody.  When the case came for trial in May 2000, she was acquitted on the basis that the only evidence against her was her confession, which was not to be relied upon. 

5. The causes of M's death were fully investigated at the time.  The medical evidence is well summarised by Ms Cudby in paragraph five of her skeleton.  She wrote:

"The post mortem was conducted jointly by Dr Cary (Consultant Forensic Pathologist) and Professor Risdon (Consultant Paediatric Pathologist).  They concluded that the cause of death was unascertained.  Sections of M's brain were examined by Dr Hardey (Consultant Neuropathologist) who detected nothing abnormal on examination.  The eyes were examined by Professor Luthert (Consultant Opthalmic Pathologist) who found no haemorrhages or features suggestive of trauma.  Dr Batman (Consultant Pathologist) subsequently reported (Dec 1999) he accepted that from the post mortem findings the cause of death was unascertained.  He reported that there were at least two possible causes of death epilepsy and mechanical airways obstruction but that the post mortem findings could not distinguish between the two.  Finally a report was prepared by Dr Ferrie (Consultant Paediatric Neurologist) who concluded that the facts were consistent with M being the victim of the phenomenon of sudden unexpected death in epilepsy."

6. In relation to the mother's confession there were interviews by Dr Joseph, a consultant forensic psychiatrist, and Mr Rutter, a chartered clinical and forensic psychologist instructed by the CPS.  Both these experts took the view that the mother was placed under pressure in interviews.  She was a vulnerable and compliant young woman.  Both had concerns about the reliability of the confession. 

7. It was against that background history that HHJ Horowitz came to review the opposing submissions of the local authority on the one hand and the mother and the guardian on the other.  He impeccably directed himself by reference to the decision of McFarlane J in the case of A County Council v DP, RS, BS [2005] 2 FLR 1031, an authority which has subsequently been approved by the decision in this court in the case of F H (Children) [2008] EWCA Civ 1249, decided on 10 September 2008.  HHJ Horowitz set out the factors relevant to the exercise of the discretion identified by McFarlane J in the authority that I have cited.  The considerations are helpfully lettered from (a) to (i) inclusive and HHJ Horowitz dutifully followed that path.

8. Ms Judd for the local authority tentatively submitted that he had omitted to consider factor (f), the relevance of the potential result of the investigation to the future care plans of the child.  Although it can be said that HHJ Horowitz omitted that sub heading when writing paragraph 11 of his judgment, it is to me plain that he has given due consideration to that factor in the present case.  So, that said, it seems to me that Ms Judd always faced an uphill task in this court in seeking to submit that the judge (who had acknowledged this to be a difficult decision, who had directed himself properly in law, who had weighed each of the relevant factors in coming to his decision) could be said to have reached a decision that was plainly wrong.  She has advanced her case with considerable charm and vigour but has made no impression at all on my mind. 

9. The issue before the judge, then and as it will be in the future, is to decide what is best for the welfare of the mother's second born, E, who was born in the same hospital as M but on [date] 2008.  After her birth there were home visits, and those involved saw the mother doing reasonably well.  The local authority, with full knowledge of the history, did not seek to issue any proceedings until there was a very worrying incident on 6 November 2008, when the mother took E to her GP for a six-weekly check.  All that the mother said, and she was accompanied at the consultation by her sister, gave the general practitioner serious cause for alarm.  He referred the case immediately to hospital, and thereafter there was on 7 November a strategy meeting at which high levels of concern for E's safety emerged.  The local authority on the 11 November applied for an emergency protection order.  That application was translated into an interim care order application on the following day, and by agreement E was placed with foster carers where she has been ever since. 

10. There are significant features of this case which in my judgment point to the conclusion adopted by HHJ Horowitz.  It is important to emphasise that this is a case in which at the time it was medically impossible to establish that M was killed by adult intervention on the evidence.  It is equally possible that his was a tragic death as a result of an epileptic condition.  The circumstances surrounding M's death remain of primary relevance to any future consideration of E's welfare needs.  Other aspects that emerged during M's short life, such as a measurement of caffeine within his urine, are plainly separable from the circumstances surrounding his tragic death, and remain available for investigation.  The local authority seem to have reached the strategic conclusion that, once features emerged on 6 November that could be said to establish some sort of pattern, some sort of repeat, that their case for the protection of E demanded that they establish, in the sense of adult responsibility, the mother's involvement in M's death.

11. I simply do not share that conclusion.  It seems to me (and in this respect I would myself reject the suggestion in the local authority's submissions to this court that their crossing of the section 31 threshold in relation to E is dependant in any way on retrieving evidence from the life and death of M) that the case that the mother has to meet in relation to her care and management of E is already of considerable gravity, and not only do I think that it was well within the discretion of HHJ Horowitz to draw a clear boundary line, I think that he was right to do so.  I am in part influenced by the fact that, had he not drawn that boundary line, the determination of E's future would have been burdened and delayed, not only by the introduction of all the historic evidence, but also by the local authority's intention to introduce into the case additionally a pathologist to consider the evidence surrounding M's death, a paediatrician to provide an overview as to M's medical history and death and E's medical history, and a psychologist or psychiatrist to answer some questions in relation to mother's interviews on 31 August and 1 September 1999.  In my view, that introduction would have been plainly disproportionate.  Of course an investigation of the mother's mental health and psychological stability is likely to be a key part of the disposal, but what is of greatest relevance is the mother's stability and wellbeing as she is now in the year 2009, and not as she was when she was a vulnerable 17 year old.  So for all those reasons I would simply dismiss the application for permission.

Lord Justice Wilson:
12. I agree.  I would echo my Lord's observation that, while we must in no way pre judge anything, nor can we do so, there is a mass of material which, even under the circuit judge's ruling, will fall for the most anxious scrutiny in the course of these proceedings.  There is, for example, a lot of evidence about a most ugly fracas between the mother and various other adults which also involved E on about 20 October 2008.  There is also a report by a psychiatrist, Dr Fisher, of an interview which she had with the mother.  She says that the date of it was 3 October 2008 but I have significant doubts about the accuracy of that date, in part because the psychiatrist says that E had been born six weeks earlier.  Probably that interview took place on about 3 November 2008.  The psychiatrist's report, as to what the mother said to her about her lifestyle and about the way in which the mother presented and behaved during that interview, will fall for anxious scrutiny.  Above all, however, there is the report of Dr Clayton to which my Lord has referred, which is comprised in the letter dated 6 November 2008 which he dictated immediately after a consultation which he held with the mother, with her sister D and, of course, with E, so that E could be taken forthwith to the hospital A&E department. 

13. There are issues which the judge will have to address in relation to the accuracy of Dr Clayton's report of what had just been said to him, and it may be in particular issues as to which of the sisters said things to him.  At all events, however, the material which he said that they had given to him about E's presentations, apparently ever since birth, and her apparent fitting or seizures, will require very considerable enquiry as to whether what was said was true, and, if true, why it had not earlier been reported, or if what was said was untrue, and, if so, of course, why it was untrue. 

14. In a neat submission, Mr Cadman suggested that it was Dr Clayton's letter of 6 November 2008 and his report of a history in relation to E of symptoms analogous to those which Miles had presented in 1999 which brought the circumstances of M's death into sharper focus and should attract some degree of investigation even at this stage.  Had I been of the view that there was any significant chance that re enquiry into M's death ten years later could lead to any significant addition to or subtraction from the substantial corpus of evidence collected in relation thereto for the purpose of the criminal trial in the year 2000, I might have taken a different view to the proper despatch of the application.  But in these respects I entirely agree with my Lord and would readily concur in the refusal of the application.

Mr Justice Holman:
15. I agree with both judgments.  I would like to say that I do not in any way underestimate the gravity of this case, and I fully respect the concerns and anxiety of the local authority in particular.  Plainly, if there could be some reliable conclusion now as to the cause or circumstances of the death of M, that might be very relevant to making long term decisions in relation to E.  But all the distinguished doctors who considered this case in 1999 all reached the conclusion that the cause of his death was ultimately unascertained or unascertainable.  It does not seem to me in those circumstances that there is any real prospect of now reaching a more reliable conclusion either way.  HHJ Horowitz said at the end of paragraph 17 of his judgment that in his view the court should hesitate from embarking on an enquiry which does not offer the real likelihood of a clear finding either way.  That seems to me to have been a conclusion well within his discretion, and accordingly I, too, would refuse permission to appeal.

Order: Application refused