Strand, London, WC2A 2LL
B e f o r e :
| Birmingham City Council
|- and -
(acting by her Guardian)
Ian Peddie QC and Joanne Briggs (instructed by William Bache & Co) for the First and Second Respondents
Paul Lopez (instructed by Osbourne & Co) for S's Guardian
Hearing dates: 14 to 24 November 2005
Crown Copyright ©
Charles J :
The position reached in these proceedings
" Permission is granted to all parties jointly to instruct a further expert, whose identity is agreed between them and whose speciality is essentially that of a paediatrician. - The letter of instruction shall be agreed and signed on behalf of all parties. - Permission for all papers (including transcripts of judgments or evidence, or agreed notes of evidence) filed or to be filed in these proceedings and in the previous proceedings concerning K to be disclosed and supplied to that expert. Permission is granted for that expert to perform any examination of, or ethically justifiable tests upon, S that all parties including the Guardian agree. – Without limiting the scope of the instructions, the expert should be requested (a) the report on all aspects of the case relevant to the question of whether or not the mother injured P, and (b) to comment on all issues raised by Dr Z [a doctor instructed by the parents to whom Holman J had directed questions agreed by the parties were to be put] "
The lead up to the present hearing
My present task
Some general background
The stark overall issues and the dilemma
a) four incidents in P's life (the fourth of which led to his death) are consistent with, but not diagnostic of, him being the victim of inflicted injury (obstruction to his airways),
b) his mother had the opportunity to inflict such injury on all four occasions and no-one else has been identified who had such opportunities. This has the result that if the injuries were inflicted the only real possibility is that the mother was the perpetrator,
c) the incidents in P's life are also consistent with, but not diagnostic of, (i) an unknown metabolic cause or some other unknown or unidentified natural cause (the position in 2000), and (ii) potentially (and importantly) some medical possibilities that Professor Y considers merit investigation (or further investigation given the advances in learning and testing techniques since 2000) to see if they should now be included as real possibilities in the case of P, and
d) the mother with the full support of her husband denies that she caused P any harm.
The approach of the Family court to earlier findings and thus in this case the earlier finding that the mother inflicted harm on P
a) in respect of appeals against a finding of fact where great weight is given to the decision of the judge whenever, in a conflict of testimony, the demeanour and manner in which relevant witnesses gave evidence are material elements (see for example the notes to RSC Order 59), and
b) the approach of the Court of Appeal in the recent cases of Re U, Re B  3 WLR 753 and  2 FLR 263 (see in particular paragraphs 88 to 91 and 151 to 152) and Re U  1 WLR 2398 (in particular paragraphs 21 to 23) where the importance of the findings of the judge as to the credibility of the mother in that case (which were not appealed) were given weight in refusing permission to appeal and to reopen the appeal in the case of U, and in dismissing the appeal in the case of B.
In my view the approach taken by the Court of Appeal in these circumstances supports the view that the parents have to satisfy a high test to prevent the local authority and the court from relying on the earlier findings of Bracewell J, as to which firstly the Court of Appeal refused permission to appeal and Kirkwood J found that, if anything, it was reinforced by the result of the further enquiries in 2001.
The general position of the parties on the review of the earlier findings at the third stage.
a) he hoped (he submitted with good cause) to be able, as a result of the further information being sought, to submit (i) that in June 2000 both Professor Meadow (and indeed Professor X and others) had been wrong and the real possibilities for the incidents relating to P included natural causes (in addition to smothering or unknown metabolic cause) which were at present being further investigated, (ii) there were powerful reasons for advancing and considering one or more of those natural causes in combination to be the actual cause, and (iii) the finding that inflicted injury was more likely than not to be the cause cannot stand, even if he could not persuade the court to conclude that it was more likely than not that the cause was a natural one, but
b) the medical experts who identified such natural causes would have to acknowledge that if the mother was not telling the truth in respect of the incidents relating to P this would at least be highly relevant to the identification of the cause of the incidents.
a) the further tests suggested by Professor Y should be carried out and that they might confirm the existence of, or eliminate possibilities to which they are directed (as other possibilities suggested in the past have been eliminated),
b) further investigation might reveal further lines of appropriate further inquiry,
c) took the common ground referred to above as to there being a full rehearing or a rehearing directed to the mother's credibility, and
d) although their final positions must await the outcome of the further investigations they envisaged arguing that the court should proceed in this case on the basis of the findings made by Bracewell J and thus on the basis that, as she found, P was the victim of harm inflicted by his mother.
a) how much change in the overall jigsaw referred to by Bracewell J would warrant a conclusion that either the overall finding should not stand, or that the overall finding on credibility should not stand, and
b) whether subsidiary findings, or some of them, stand but the overall finding of inflicted harm falls, and if so the reasons for this.
a) on the medical and other evidence inflicted injury and a natural cause or causes remain real possibilities,
b) Bracewell J has found that the mother has not given a truthful account of the incidents relating to P,
c) changes in respect of the medical evidence (and possibly other evidence) to that before Bracewell J, or established challenges to the expert evidence before Bracewell J, mean that there are changes in parts of the jigsaw referred to by Bracewell J, but
d) a number of her findings directly related to the credibility of the mother, the history, the medical evidence and other matters are not affected (or sufficiently affected by such changes) and therefore stand, and
e) the court is now not in as good a position as Bracewell J was to determine outstanding issues relating to the credibility of the mother in respect of the history, or the relevant circumstances more generally and thus to carry out an overview and make findings by reference to all the pieces of the jigsaw as to which of the real possibilities is more likely than not to be the actual cause of P's symptoms. And no party would be inviting the court to conduct a full rehearing, or a rehearing of the credibility findings, at which the mother (and others) would give oral evidence.
The general positions of the parties as to the effect of the finding that the mother inflicted harm on P and was responsible for his death and problems they raise in connection with risk management
a) the court would not be invited to and would not if its own motion conduct a full rehearing, and in those circumstances,
b) the local authority would be unable to establish the existence of the threshold by proving to the civil standard that P was the victim of inflicted harm,
counsel for both the local authority and the Guardian (against the above mentioned background of their positions) accepted and asserted that in those circumstances:
(i) the threshold conditions could not be and would not be established, with the consequence that
(ii) the court would have no jurisdiction to make any orders, and
(iii) S would return to the care of her parents.
a) on the medical and other evidence both inflicted injury and a natural cause or causes remain real possibilities,
b) changes in the medical evidence (and possibly other evidence) and thus parts of the jigsaw referred to by Bracewell J mean that her overall finding that it is more likely than not that P was the victim of injury inflicted by his mother cannot be relied on as proof of that significant harm in these proceedings, but
c) some or all of the subsidiary findings of Bracewell J related to the credibility of the mother, the history, the medical evidence and other matters (e.g that the mother did not give a full and truthful account of certain parts of the history) do stand because they are sufficiently based on a foundation of reasoning that is not undermined, or sufficiently undermined, by the changes in the medical evidence, and
d) the court is not now in as good a position as Bracewell J was (i) to assess and determine the outstanding issues relating to the history and the credibility of the mother against a background that the cause of the incidents is consistent with but not diagnostic of inflicted harm and natural cause, and thus (ii) to reach a conclusion as to whether one of those possibilities is more likely than not to be the cause having regard to an overview of all the evidence.
If the parents were to establish that none of the earlier findings on the credibility of the mother's account of the history can stand points (a), other parts of (c) and (d) would remain as would the point that Bracewell J made the credibility findings that she did (which favour a conclusion that the mother inflicted harm on P) against the background of real possibilities identified by the medical evidence at the time and set out in her judgment.
a) there was a real possibility that the mother might injure S, a possibility that cannot be ignored having regard to the nature and gravity of the feared harm, and that
b) there is therefore a risk that S might suffer harm that should be considered by the court at the disposal stage.
General points as to the overall approach in law to issues arising in public law proceedings under the Children Act -- Expert evidence / the roles of the court and the expert
Further comment on the general points raised above and the identification of issues that in my view arise for consideration in this case.
The attack on the evidence of Professor Meadow
Expert Evidence and Directions
Publication of judgments
a) the approach the Family court is taking in this case and takes to a case of this type, namely one in which parents seek a review of an earlier finding that a child of theirs was the victim of harm inflicted by one (or both) of them, and
b) more generally the approach of the Family court to cases concerning allegations that a child has been the victim of inflicted harm.
a) the dilemma that faces local authorities, doctors, courts and the parties in cases of this type,
b) the differences between Criminal and Family proceedings,
c) the role of experts, and
d) where the jurisdictional line set by s. 31 Children Act should be drawn and thus when a Family court (and through its order a local authority) should have jurisdiction to intervene in the lives of a family (adults and children) in cases where a child has demonstrated symptoms that are consistent with, but not diagnostic of, inflicted injury for the purpose of promoting the welfare of relevant children
raise points of general public interest.
a) a rigorous, well informed, thorough and balanced approach by doctors and others to cases where inflicted injury to a child is a possibility to seek to ensure that any decision on whether this is or is not the case is the right one, and
b) doctors and others who are in a position to identify circumstances that indicate that a child might be the victim of inflicted harm to take an active part in reporting such matters, and in their investigation by the appropriate public authorities, to seek to ensure that proper steps are taken to protect children from inflicted harm and that courts and others have the benefit of properly reasoned medical evidence.