IN THE MATTER OF THE CHILDREN ACT 1989
33 Bull Street, Birmingham B4 6DS
B e f o r e :
|IN THE MATTER OF M AND Z (CHILDREN)
A LOCAL AUTHORITY
|M AND Z||Respondent Children|
Greg Rogers counsel (instructed by Bailey Wright and Co.) for the First Respondent mother
Michelle Brown counsel (instructed by Rashid and Co.) for the Second Respondent father
Andrew Bainham counsel (instructed by Carvill and Johnson) for the children
Hearing date: 24th June 2020
Crown Copyright ©
Previous care proceedings BM19C00224
(i) Dr A, Consultant Paediatrician, H Hospital, 07.08.19 (H83 and addendum dated 31.10.19 at H143);
(ii) Mr N, Consultant Opthalmic Surgeon, 03.09.19 at H87;
(iii) Mr S, Paediatric Consultant Neurosurgeon, B C Hospital, 13.08.19 at H88;
(iv) Dr N, Specialist Doctor in Neurosurgery, B C Hospital, 27.08.18 at H149.
"not possible to prove radiologically whether the fracture had been caused by impact after a fall, nor whether the cause was accidental or non-accidental".
Other parts of his report are reproduced below.
a. The causation of the skull fracture suffered by Z, whether accidental or non- accidental, and whether Z has bone fragility that may affect her propensity to sustain fractures; (italics added); and
b. the identity of the perpetrator in the event that the skull fracture was caused non-accidentally.
"The local authority having withdrawn the application the court makes no order."
a. No Judgment was given.
b. Counsel for the local authority opened the hearing and introduced the parties and representatives, it appears, including the Guardian.
c. Counsel for the local authority stated that on 29th October 2019 there had been a hearing and "consideration was given to whether Dr O … finalise report …" He appears to refer to the need to check whether all documents had been seen by Dr O. He then stated that it became clear that Dr O had seen all necessary material and that the local authority was given 7 days to consider whether findings would be sought and what they would be.
d. Counsel for the local authority referred to the case summary and an application to withdraw the proceedings. I have seen and read the case summary. Counsel stated that he considered that the case was in "the first category of cases – where threshold cannot be met … cannot be met on the basis of Dr O…" He stated that the application was an appropriate application on behalf of the LA and that there had been communication on 7th November 2019 to other parties.
e. There was reference to an existing care order, the children returning on 8th November and that all were in support of the application.
f. There was some short discussion with the Judge and there appeared to be a suggestion that there would now be some medical attention given as to how to manage a situation with a child with potentially brittle bones, the local authority stating that steps had been taken to start or undertake that investigation.
g. There was discussion about the Judge's ability to view evidence sent on a disc.
h. The Judge stated that both parents needed to be extremely careful with the child pending investigation into brittle bones. She stated that the social worker should be reassured that the action the LA took in the summer on the information it then had was highly appropriate and that 'these things happen rarely' (which appears to be a reference to 'brittle bones').
The current proceedings
"by the end of the care proceedings the cause of Z's injury had not been determined by the court and nor had any expert stated what they believe the actual cause was."
As far as I am aware, there was no appeal against the ICO Judgment. I have informed the advocates in the current proceedings that my recollection, and only that, was that I was informed during the ICO hearing that no determination was made as to the causation of Z's skull fracture.
a. That one or other of the parents inflicted the injury which caused the skull fracture;
b. That the parents failed to present Z to hospital promptly following the injury to her head; and
c. That the parents deliberately misled professionals by failing to give a full account of the events which led to the injury which caused the skull fracture.
The Issue for determination
The submissions made by the parties
"The court must not entertain an oral request for leave to withdraw proceedings in the absence of the children's Guardian, even if his legal representative is present"
Local Authority and Guardian
Furthermore, it was submitted that it was clear that the judge was simply invited to approve the local authority's recently taken decision to seek approval to withdraw the proceedings: that is not tantamount to a determination on the facts. On the contrary, it was submitted that it was merely an, "evaluation of whether the authority would be acting reasonably and properly in withdrawing its application". It was submitted on behalf of the Guardian that it was likely, or was the case in the previous proceedings, that the local authority and court had reached the conclusion that it was unclear whether the local authority would be able to establish facts relevant to threshold on the basis of the then available evidence, and that it was in the best interests of the children that the local authority be permitted to withdraw the proceedings.
a. it was clear that at that hearing no findings was sought or made by any party, and the court was not required to make findings in order to grant permission to withdraw the proceedings or to bring the case to a close of its own motion;
b. the fact that the local authority considered that the case was in the first category, where threshold could not be met, on the basis of the evidence of Dr O, was based on the evidence then before it and the court; an analogy could be drawn between that situation and that in a criminal case where no further action is taken due to a lack of evidence, rather than a lack of guilt;
c. the note of the hearing is silent as to which category of case the judge considered that the case fell within;
d. it was unclear from the note whether the judge gave permission for the local authority to withdraw its application, or, whether the court brought the proceedings to a close of its own motion. Having regard to the Order, permission to withdraw is not recorded but there is reference to the local authority having withdrawn its application. It was submitted that the order of 'no order' was consistent with the case being in the second category. The local authority drew my attention to the fact that the reasoning of the court is unclear; no judgment is given as to the merits of the trust's application; no judgment is given as to the allegations regarding the skull fracture; there is no analysis of the children's welfare.
"Where an application for permission to withdraw is mounted in proceedings in which the local authority is unable to satisfy the threshold criteria pursuant to s 31(2) of the Children Act 1989, then that application must succeed. However, where on the evidence before the court the local authority could satisfy the threshold criteria, then the court must consider whether withdrawal is consistent with the welfare of the child such that no order is required pursuant to s 1(5) of the Children Act 1989 (see Redbridge LBC v B and C and A (Through His Children's Guardian)  2 FLR 117)."
In the Redbridge case, (cited by MacDonald J above) Mr Justice Hedley had stated that:
"If the local authority could not prove the threshold criteria, then of course their application would succeed without more as otherwise I would have no alternative but to dismiss the proceedings. If, however, the threshold could be established, then the application would really depend upon the court concluding under Section 1(5) of the Children Act 1989 that no order was necessary; that is to say on the basis that withdrawal was consistent with the welfare needs of A - see L.B. Southwark -v- Y  2 FLR 559 and WSCC -v- M, F and others  EWHC 1914 (FAM)."
A finding of fact is not, in a strict sense, "an order", but it may comprise the determination of an issue which is crucial to the disposal of the proceedings and is susceptible to appeal. Such a finding of fact is integral to the order on which it is based and, accordingly, comes within the scope and purpose of section 31F(6) of the Matrimonial and Family Proceedings Act 1984. (See Re B (Split Hearing: Jurisdiction)  1 FLR 334, Re E (Children: Re-opening Findings of Fact)  EWCA Civ 1447).
(i) First, at stage I, the court must consider whether it will permit any reconsideration or review of, or challenge to, the relevant earlier findings. This will require there to be, "some real reason to believe that the earlier findings require re-visiting … Solid grounds for challenge". It will be of importance to consider whether there is any new evidence or information which may cast doubt upon the accuracy of the original findings.
(ii) Secondly, at stage II, the court will be required to determine the extent of the investigation and evidence concerning the review.
(iii) Thirdly, at stage III there will be the hearing of the review, in which the evidential burden falls on those who seek to displace the earlier ruling, whilst the legal burden of proof remains throughout where it was at the outset.
See Re AD & AM (Fact-finding hearing) (Application for re-hearing)  EWHC 326; Birmingham City Council v H  EWHC 2885; Re ZZ (Children) (Care Proceedings: Review of Findings  EWFC 9; Re LG (Re-Opening of Fact Finding)  EWHC 2626.
Analysis and Conclusions
(i) First, I have set to one side the Part 25 application. Whether I should even consider that application, and if I should, whether I should grant it, is a matter which, in my judgment, can only properly be determined after my conclusions in respect of the issues set out below.
(ii) I sought to identify, so far as possible, that which occurred at the hearing on 12th November 2019 before the Judge.
(iii) Thirdly, I have considered whether there was any factual determination as to the cause of Z's skull fracture in the previous proceedings and, if so, what that finding was.
(iv) Fourthly, I considered whether, in the light of my conclusion in respect of (ii) and (iii) above, I should entertain a reconsideration of that which I set out in the ICO Judgment.
(v) Fifthly, depending on the outcome of (iii) and (iv) above, I considered whether, if there was a factual determination as to the causation of Z's skull fracture, what it was, and, then, whether I should reconsider it within these proceedings.
(vi) Then, and only then, have I turned to the Part 25 application.
The hearing before the judge on 12th November 2019: what occurred?
"The local authority having withdrawn their application the court makes no order."
I accept that the fact that there was no Judgment, tends to militate in favour of the suggestion that this was a case where it was considered (per the local authority submission) that threshold could not be proved. The terms of the Order made however, are more consistent with the contrary submission for reasons expanded upon below.
"AND UPON the local authority having been granted 7 days to consider its position at the hearing of 29th October 2019 following receipt of the report of Dr O and confirmation that they had received all necessary evidence for the finalisation of their report. The Court being aware that the local authority may seek to withdraw this application.
AND UPON all parties consenting to the local authority application to withdraw the application for a care order in respect of both children.
AND UPON the interim care order in respect of the children made on 21st August 2019 being discharged by way of the application being withdrawn.
AND UPON the Court being informed that the children were returned to the care of the parents on 8th November 2019."
"The local authority previously sought 7 days following confirmation at court that Dr O had received all the relevant material in advance of providing their report. The local authority subsequently having reviewed the updating evidence and confirmed their intention to apply to withdraw care proceedings. The children remained under an interim care order and were returned home to the parents on 8th November 2019. The local authority position being that the threshold criteria pursuant to s.31 of the Children Act 1989 are not met.
The mother supports the application of the local authority to withdraw care proceedings.
The father supports the application of the local authority to withdraw care proceedings.
The children's guardian supports the application of the local authority to withdraw care proceedings."
" … whether Z has bone fragility that may affect her propensity to sustain fractures"
"There is an abnormal number of Wormian bones (accessory skull bones lodged between conventional skull bones) in Z's skull. This may be a normal variant, but it is also an observation that is more frequently made in children suffering from osteogenesis imperfecta (group of genetic disorders that cause bone fragility). The diagnosis of osteogenesis imperfecta cannot be made on this basis, but the finding should in my opinion prompt further medical investigation, and I am aware that such investigation has been instigated."
"There is an abnormal number of Wormian bones in Z's skull. This may be a normal variant, but it is also an observation that is more frequently made in children suffering from osteogenesis imperfecta.The diagnosis of osteogenesis imperfecta cannot be made on this basis, but the finding should I my opinion prompt further medical investigation.
There is no established system of objective radiological investigations for predicting fracture risk in young children.
Regarding medical conditions that may be associated with fragile bones, I can only comment on the presence of any radiological sign of subjectively low bone density, and of any in-born metabolic (e.g. nutritional deficiency), cancerous, or infectious disease. In my opinion, there is no subjective evidence of low bone density, not evidence of abnormal shape or size of any bone, and no evidence of any focal bone abnormality apart from the fracture and the Wormian bones. Hence bone fragility cannot be diagnosed based on the radiological findings alone.
My further assessment assumes that the bones were not abnormally fragile. It must however be acknowledged that bones may be abnormally fragile without any sign of the same on x-rays or scans. Therefore, if other experts conclude that the bones were fragile, then my assumption does not hold and my further opinions may need to be revised.
It is in my opinion the province of an expert paediatrician, endocrinologist or geneticist, taking all medical facts into consideration, to assess the likelihood of bone fragility and to advise on the need for any further investigation of the same."
Were findings of fact made? What were they? Were they implicit in the Order made?
Should I revisit that which I said at paragraph 12 of the ICO Judgment?
Alternative conclusion: re-opening of issues determined before
a. So far as it is possible to tell, the judge gave permission for the proceedings to be withdrawn;
b. She made 'no order', and on balance, I consider that this suggested that the case was one where there was uncertainty as to whether threshold had been established;
c. It was an active consideration before the Court on 12 November 2019 that there was evidence that Z may have abnormal bone fragility;
d. No one pursued the determination of any specific findings of fact;
e. No findings of fact were made; and
f. Even if they were, this Court should now re-visit findings which were made in the light of the new information which became apparent in November 2019 after the children had returned home.
(i) invite requests for clarification or reconsideration of any aspect of this Judgment if any party considers that is required;
(ii) In respect of my alternative conclusion, invite any further submissions as to the extent of the investigation into any determination of fact made by the judge (if any party wishes to make them);
(iii) Invite any further submissions regarding the Part 25 application.