COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
(Mr Justice Bennett)
Strand London WC2 |
||
B e f o r e :
LORD JUSTICE THORPE
____________________
B (A MINOR) |
____________________
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-831 3183/0171-404 1400
Fax No: 0171-404 1424
Official Shorthand Writers to the Court)
____________________
Crown Copyright ©
LORD JUSTICE THORPE: The parents of a very young child seek the leave of this court to appeal judgments given in the Family Division by Mr. Justice Bennett and Mr. Justice Cazalet, but principally the judgment given by Mr. Justice Bennett on 30th January 1997 when he was sitting in Leeds. The parties before him at that hearing were the Redcar and Cleveland Borough Council, the parents, and the guardian ad litem.
The subject of the judicial investigation was R who was born on 12th July 1996 to young parents, mother 19 and father 22. The issue that the judge had to investigate was what had happened to R, particularly on 4th September 1996, a date on which he was admitted to the accident and emergency department of the local hospital suffering from head injuries, which were explained by his parents in a way that was closely investigated at the trial in January 1997.
The initial medical appraisal was that the injuries were not in themselves indicative of any profound concern, and R was swiftly discharged home. However, after his discharge, further medical investigations and further consideration by the specialists at the hospital led to reconsideration, and the case was referred by the South Cleveland Hospital to Great Ormond Street, as a centre of excellence, where the medical evidence was reviewed by Dr. Cling Chong.
The shift in the medical appraisal led to an expert conclusion that R had suffered non-accidental injury. There was then an intervention by the local authority leading to R's placement elsewhere, but within the extended family.
The range of medical evidence was extended during the course of the preparation of the Children Act proceedings. For the parents obtained leave to consult Dr. Livingstone in Leeds and the guardian ad litem obtained leave to consult Dr. San Lozaro in Newcastle. Dr. Livingstone is a consultant paediatric neurologist at the Leeds General Infirmary. Dr. San Lozaro is a consultant paediatrician with the Royal Victoria Infirmary in Newcastle upon Tyne.
As is good practice in Children Act proceedings where there are complicated medical issues, a direction was made for all the experts in the case to meet in an endeavour to arrive at either a consensus, or, alternatively, a narrowing of the issues. The relevant doctors, beyond those whom I have already mentioned, were doctors McCarty, Morell, Brady and Santosh, together with Mr. Strachan, a surgeon. As the judge said at page 30 of his judgment:
"All the doctors to which I have referred, save for Dr. Chong who was in London and could not be present, met under the auspices of the Guardian Ad Litem on the 24th January, 1997."
I then pass over a few sentences and read this:
"At the end of that meeting there was an agreed report, signed at various times by all the doctors. Dr. Chong was kept informed of what was going on and, as I understand it, agrees with the conclusions."
The judge then quotes the recorded agreement of the medical experts. The essential record is as follows:
"R had two skull fractures situated on the left and right side of the skull. One is fresh and compatible with the injury taking place on the day of admission, the other is older and cannot be dated. The older haemorrhage . . . had been present for at least seven days and could be older. The fresh haemorrhage associated with the left parietal fracture could have occurred on the 4th September or within a few days prior thereto. The old subdural haemorrhages were likely to be the outcome of a vigorous shaking incident.....
The old fracture . . . is the outcome of an impact injury. That is to say the head striking or being struck by an object. The new fracture is the outcome of an impact injury and is compatible with a fall, as described by the parents, relating to the 4th September."
The opinion expressed by this gathering is recorded by the judge as follows:
"R has suffered two impact injuries to his skull and one episode of severe shaking/whiplash injury to the head. A further episode of shaking injury immediately before his admission to hospital is also most likely on the evidence. There are no predisposing factors in R's development or behaviour (video tape viewed) and there is no pre-existing brain abnormality which increased vulnerability. A number of scenarios have been presented and considered and none of these are tenable as explanations for his multiple injuries.
We, the undersigned, are fully agreed on a strong balance of probability that R had suffered shaking head trauma and impact head trauma and that much of this trauma has been non-accidental."
Three doctors were called before Mr. Justice Bennett. He commended them for their evidence. He said that they were entirely independent, fair and professional. The judge then made his essential findings, and sadly they were all of them adverse to the case advanced for the parents.
(Following the outburst of those present in court, the court was cleared in order for the judgment to continue.)
He said, first, in relation to the parietal skull fracture, that he was quite satisfied that it was a non-accidental injury. In relation to the bilateral subdural haematomas, he found that they were caused by non-accidental injury, not less than seven and no more than 21 days before the 4th September. In relation to a second brain haemorrhage, he found that that did not have any connection with the incident on 4th September, and that, although the doctors did not completely exclude the possibility that it was associated with that alleged fall, nevertheless, on the balance of the evidence, he held that that haemorrhage was caused by an incident of violent shaking on 4th September or within a few days immediately preceding.
Finally, in relation to the events of 4th September themselves, he rejected the account given by the family, and concluded that there was simply no credible explanation as to why R had fallen. He said:
"So, with much regret, I have to reject the account that the parents have given as to how R was injured on the 4th September. I do that principally because their evidence about what happened on the 4th September is simply to my mind not credible."
In the final paragraph he concluded that all the injuries were non-accidental.
The parents seek leave to appeal and also an extension of time, and in presenting their applications this morning all members of the family have spoken. The principal point on which they seek to persuade this court is that there has been a substantial miscarriage of justice because, they assert, the evidence of Dr. Cling Chong was not before the trial judge and, had it been before the trial judge, it would have led to a different conclusion.
That submission is quite simply unsustainable. In relation to Dr. Cling Chong, I have already recorded that, although not actually present at the meeting of experts, he was kept informed of its developments and concurred in its conclusions. Furthermore, in the judgment at page 16, the judge specifically recorded:
"[Dr. Chong] was not called before me because on the 24th January, 1997, all the doctors involved in this case met and unanimously agreed that the injuries seen in R were caused non-accidentally. He was not called and no criticism is made by anybody of that decision."
Finally, I would only wish to emphasize the quality of the legal team that represented the parents before Bennett J. They had as their counsel both Mr. Ford and Mr. Focke QC. The judge specifically said at page 35 of his judgment:
"I wish to record my indebtedness to the skilled cross-examination of Mr. Focke and his very skilful presentation of this case on behalf of the parents."
It is easy to understand how traumatic for the parents and, indeed, for the grandparents has been this outcome. But it is a case in which there was a wealth of expertise and complete unanimity amongst the experts, including the expert specifically instructed on the parent's behalf. The judgment of Bennett J is particularly full and careful, as an issue of such importance demanded. But, in my judgment, it would be quite impossible to conclude that anything that has been said or written in support of these applications discloses the least error in the trial proceedings or the least prospect of success on an appellate review. For my part, I would refuse these applications.
LORD JUSTICE PHILLIPS: I agree. At the heart of these applications was the contention that, contrary to the understanding of the judge, Dr. Chong was at odds with the conclusions of all the other medical evidence. Had that been the case, it seems to me inconceivable that this fact would not have been before the trial judge and evidenced by a statement or report from Dr. Chong to that effect. Furthermore, even had Dr. Chong differed from the views of all the other experts, it does not seem to me that this could have affected the outcome, having regard to the overwhelming effect of the agreed medical opinion in this sad case.
Order: Applications refused.