COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Leeds District Registry
His Honour Judge Garner and Mr Recorder Peter Collier
Strand, London, WC2A 2LL
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LORD JUSTICE NEUBERGER
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Official Shorthand Writers to the Court)
Jeremy Posnansky QC and Nicola Saxton (instructed by Kirklees Metropolitan Council) for the 1st Respondent
Michael Bourdon (instructed by Eaton Smith Solicitors) for the 2nd Respondent
Alison Grief (instructed by Ridley Hall Solicitors) for the 3rd Respondent
Pamela Lawrence (instructed by Parker Bird) for the Guardian
Crown Copyright ©
Lord Justice Wall:
The applications before the court
The hearing before Judge Garner
66. I have considered all the reported accounts, statements and then the evidence of the mother, father and grandmother with care. There are not only variations of account prior to their evidence. In their evidence itself there were movements apparently towards an end. Mother moved to emphasise her role as primary carer and to express full confidence in the family. Father moved to reduce his own role almost to absurdity and also to reduce grandmother's role even below that described by her. Grandmother showed imaginative adjustments to a number of phrases not least what "once or twice" meant at various times.
67. The truth has a consistency, which enables accounts given at different times to match each other and form a laminate cogency. Precisely the opposite has applied in the case of the mother, father and grandmother. Overall there is no evidence in the case of sufficient cogency for me to find any of the competing facts contended for on behalf of mother, father and grandmother although I go very near, as will be clear, to the findings sought by mother about a conspiracy by father and grandmother. It is wholly clear that A was in the overall care of mother, father and grandmother when she was injured and, on any view, any of them could have been the perpetrator. There is no proper basis actually to exclude any of them although feelings and suspicions could be another matter.
68. I shall, therefore, find in a moment, as sought by the local authority, that all three must be considered perpetrators. I am also driven to conclude that there has been a conspiracy to conceal the truth over what happened on at least two occasions in that household. The truth remains locked within that household and unless and until it is let out future assessments will be difficult, if not impossible, exercises. The partners in the conspiracy have been mother, father and grandmother and could, I suppose, extend to grandfather as well. I accept the truth of the note of the interpreter's conversations with mother.
69. I am firmly of the view that whilst father and grandmother have been willing partners in that conspiracy, mother herself has been an unwilling partner. So long as she remains in that conspiracy, the consequences will be serious for her as for the others. I will set out the numbered findings.(1) A sustained the following injuries: (a) bilateral subdural haematomas; (b) a right temporal sheering injury; (c) bilateral retinal and pre-retinal haemorrhages; (d) a metaphyseal fracture of the distal right tibia. All of those I now call "the injuries".
(2) Each of the injuries was non-accidental and could not have occurred by unintentional rough handling.
(3) The cause of the injuries was a severe shaking with or without impact and for the fracture either a severe shaking or forceful yanking with the leg gripped at the ankle joint.
(4) The injuries were sustained on at least two separate occasions, the first episode being two to four weeks prior to 21 January 2003 and the second in a period within 24 hours prior to admission to hospital on 17 January 2003.
(5) The injuries occurred whilst A's care was actively shared between mother, father and grandmother, none of whom can be excluded as potential perpetrators and each of whom must be regarded as such.
(6) Mother, father and grandmother have been partners in a conspiracy to conceal the truth in which father and grandmother have been willing partners and mother has been an unwilling partner.
70. On any view those findings establish the threshold criteria under section 31 of the Children Act both as to actual harm in respect of A and likelihood of harm to her in the future were she to return to the care of the mother, father and grandmother or any of them. Without fundamental changes in descriptions of the history, no doubt the same likelihood would apply to any future child but that would be a matter for consideration in the future.
Events after 11 December 2003
It is my view that (the mother) does understand the judgment of HH Judge Garner in all his findings. However, she does not accept any of the findings and continues to maintain that neither she not her husband or mother in law were responsible for the injuries, and denies any sort of conspiracy. She understands the implications of this position for any further children she may have in the future. She does not intend, nor would she be able, to leave the security of the family and live completely on her own in order to apply for rehabilitation of the child (sic) to her care.
The hearing before Mr. Peter Collier QC
Events since the hearing on 20 April 2004
The case for the mother
The case for the local authority
(1) The applications/appeals should be dismissed.
(2) The new material, which the mother seeks to adduce, should not be admitted.
(3) Even if the new evidence was admitted, it did not (a) form a basis for allowing the applications/appeals; (b) remove the mother from being a possible perpetrator; or (c) explain how A was injured.
(4) There was no breach of the mother's ECHR Article 6 or Article 8 rights.
(5) Particularly where the mother had had such extensive and so many opportunities to give a true account, finality was required now. It would involve no unfairness to the mother. Moreover, and fundamentally, the children's interests demanded that there should be no further delay.
The willingness of the family jurisdiction to relax the ordinary rules of issue estoppel, and (at the appellate stage) the constraints of Ladd v Marshall  1 WLR 1489 upon the admission of new evidence, does not originate from laxity or benevolence but from recognition that where children are concerned there is liable to be an infinite variety of circumstance whose proper consideration in the best interests of the child is not to be trammelled by the arbitrary imposition of procedural rules. That is a policy whose sole purpose, however, is to preserve flexibility to deal with unusual circumstances.
In the general run of cases the family courts (including the Court of Appeal when it is dealing with applications in the family jurisdiction) will be every bit as alert as courts in other jurisdictions to see to it that no one is allowed to litigate afresh issues that have already been determined. The maxim 'sit finis litis' is, as a general rule, rigorously enforced in children cases, where the statutory objective of an early determination of questions concerning the upbringing of a child expressed in s 1(2) of the Children Act is treated as requiring that such determination shall not only be swift but final.
The case for the grandmother
The case for the guardian
The position of the father
Discussion and analysis
The attitude of the father and the need for absolute frankness on the mother's part
To describe father in the witness box as manifestly unimpressive is almost a kindness. He reduced all his earlier accounts of family history, guarded though they had been, to a virtual nonsense. In contradistinction to mother, however, he never lacked confidence and he did not shrink from asking his own questions of both Mr. Bickler and Mr. Harrison, sometimes starting with the words, "Even you".
This court has made every allowance for the enormously difficult position in which you find yourself. We understand that you feel alone, and face an uncertain future in a foreign country where you do not speak the language.
But what you must now understand is that from now on you must tell the court the truth, the whole truth and nothing but the truth. Nothing else will do. Judge Garner found that you were an unwilling part of a conspiracy of silence. That means that you know what happened to A. You must now tell the court frankly and fearlessly what happened to A, even if it does not reflect well on you. The only way you stand even a possible chance of being reunited with your children is if you tell the full and complete truth about what happened to A. If there is even a whisper of conspiracy or collusion with your husband or anyone else, that will be the end. The children will be adopted. They cannot wait much longer, and this is your last chance. There is no guarantee, even if you tell the full truth, that the children will be returned to you, but what is absolutely certain is that if you do not tell the full truth, the children will not be returned.
ORDER (made on 24th August): Mother's application for permission to appeal granted; appeal allowed; orders freeing both children for adoption set aside; children to be made subject of Interim Care Orders in favour of the local authority; question of identity of perpetrator of non-accidental injuries to the elder child, identified by the judge on 11 December 2003, will be remitted to a judge at first instance, preferably the judge who heard the case, for further investigation and consideration; application to reopen the question of the injuries to be listed for directions before His Honour Judge Peter Hunt, the designated family judge for Leeds, on 2nd September 2004 at 10 am, with a time estimate of one hour.