England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
(His Honour Judge Catlin)

		Royal Courts of Justice Strand London WC2
		Monday, 23rd July 2001

1. LORD JUSTICE THORPE: West Berkshire District Council appeals from an order of His Honour Judge Catlin, sitting in the Reading County Court, on 11th April 2001. He had before him care proceedings in relation to two children of the marriage of DT and ST. The elder child is J, who was born on 29th July 1997. The younger child was born on 12th March 2000 and christened H. There is no doubt at all that in June 2000 H sustained serious injuries: fractures not only to the ribs, but also to the left femur. These injuries were fully disclosed by a skeletal survey conducted on 21st August 2000. Almost immediately thereafter H passed into the care of her maternal grandparents, although J remained at home.
2. It is unnecessary for me to say anything about the care proceedings prior to an order on 12th January 2001, when Judge McIntyre set down a four-day causation hearing to commence on 9th April. At that stage there was no evidence from either parent to explain these very serious injuries. However, in February, in the course of consultations with Dr Beckett, the father admitted his responsibility for the injuries. He explained them as the product of his profound jealousy and frustration, distinguishing the relationship that he had managed with his first born, J, from the relationship with his second born, H. Those admissions were referred to the experts in the case, Dr Saunders and Dr Chapman, who accepted that the father's descriptions of his actions in June were medically capable of having caused the injuries discovered in August. So those very significant developments seemed to remove the need for four days of litigation to establish causation.
3. There was a directions hearing before Judge Catlin on 30th March 2001, approximately 14 days after the parents had filed statements in which they accounted for the past and in the course of which the father testified as to the distinction between his relationship with J and his relationship with H. The judge gave directions that the local authority should file a case summary and a statement of case and also that the parents should respond.
4. The case summary, which is dated 4th April, defines the issues for the fixture as follows:

"The matter is listed on 9.4.2001 (time estimate 4 days) for a causation hearing to establish section 31 in respect of both [J] and [H]. Mrs [T] will not agree to the making of a further interim care order after the causation hearing and seeks [H]'s return to her care at this stage. The issues for the court will be:

1.Are the threshold criteria met in respect of [H] and [J].

2.In respect of [H], how were the physical injuries caused, in particular the rib injuries.

3.Should [H] be returned to the care of Mrs [T] at this stage.

4.Should Mr [T] remain out of the family home pending a risk assessment."

5. When that statement was drafted the two experts were in agreement. Accordingly, it is hard to see how much, if any, evidence would have been necessary in relation to issue 2 (namely, how were the physical injuries caused) because there was a detailed description from the father which both clinicians were satisfied was scientifically credible. However, when the parties assembled on the first day of the fixture Dr Saunders communicated his misgivings. Accordingly, after submissions, the judge established that both parents would give oral evidence limited to the issue of mechanism (i.e. the father's description of what he had done) to enable the doctors to assess whether it made scientific sense. At the conclusion of that exercise Dr Saunders' misgivings were allayed and he reverted to the position that he had held in the run-up to the trial, namely a position of agreement with Dr Chapman that the father's account was medically credible. So there remained, presumably, the other issues defined in the case summary.
6. The parents, during the course of their evidence as to mechanism, had also given evidence as to the relationships within the family. Miss Morris had examined her client in chief in amplification of his oral statement that his relationship with J had been straightforward and uncomplicated and that all his difficulties had been concentrated in his relationship with his second child. That evidence was corroborated by the mother when examined in chief by Miss Quinn. Miss Brown, who represented the local authority below, did not cross-examine in that area.
7. The course that the trial took after Dr Saunders reverted to his agreement with Dr Chapman was that counsel sought to draft a statement of facts relevant to the section 31 threshold (issue 1 on the case summary). That task was attempted first by the local authority, who produced a document on the evening of 9th April and faxed it through to the other counsel. The second day was devoted to negotiation on that draft and achieved a large measure of agreement. On the document there were some 29 paragraphs, of which all but paragraphs 2, 27 and 28 were agreed. We are told that through this process of negotiation the judge was informed from time to time of developments and his views were canvassed as the negotiation proceeded. At the end of the second day the parties adjourned, to lay before the court on day three the product of their negotiation. The document is headed "Agreed Findings", after which there appear these words:

"Paragraphs 2, 27 and 28 are not agreed and the parties seek determination of them from HH Judge Catlin."

8. At the hearing on 11th April no further oral evidence was called. The judge undoubtedly offered all parties the opportunity to resume or to commence oral evidence and no one took advantage of the offer. So the judge's determination was necessarily made on such written evidence as had been submitted by the parties and upon the oral evidence of the parents - all that, of course, supplemented by the submissions of counsel.
9. The judge's judgment is an extempore one and it is relatively brief. He recorded in the opening paragraph that the hearing was to determine whether or not the threshold criteria were established in relation to the two children. He also said that the hearing was to find facts which might assist in the assessment of the family as to orders which might be made in relation to the children for the future. In paragraph 2 he recorded that he had heard oral evidence from both parties limited to the circumstances of how the injuries were caused to H. He further recorded that all parties had had the opportunity to give further oral evidence, but, by consent and with his approval, no further oral evidence had been given and the matter was dealt with by submissions. In paragraph 3 he gave his endorsement for the validity of the findings that had been submitted to him in the document headed "Agreed Findings". He recorded that those findings were in accordance with the evidence in the case and he was satisfied with them. He then considered the important question of the evidence of the parents and he specifically found that the father was being as truthful as he could be. He went on to find that the mother was a caring and responsible mother.
10. Having made those findings, he proceeded to what he described as the first issue of whether the threshold criteria had been established in relation to J. He identified the local authority's case as being the classic one: significant physical injury to one child in the family inevitably meant that another child within the family must be at risk of harm. Against that, he set what he rightly described as the unchallenged evidence of the father, supported by the mother, that the father's relationship with J was wholly different to that which he had with H. He also referred to the fact that J had lived throughout her life, both before and after June 2000, without any evidence whatsoever that she had suffered in any way or that her father had behaved in any way inappropriately towards her. He had to choose between the local authority's case that, by inference, J must necessarily be at risk of harm and the parents' riposte that the relationship between the dangerous parent and the injured child was completely different to the relationship between the dangerous parent and the uninjured child. He described those as common sense submissions on both sides. He held them to be finely balanced, but then said that he was unable to find that at the date of the commencement of proceedings, 14th November 2000, there was a likelihood that J would suffer significant harm, either physical or emotional, in the care of either of her parents. He went on to make detailed directions to ensure that H's future would be disposed of at a five-day fixture commencing 8th October. For that hearing he directed an expert's report by mid August and the filing of evidence thereafter by the parties and, of course, a report from the guardian.
11. The local authority were, in Mr Turner's words, extremely surprised at the line the judge had taken and accordingly sought permission by a notice which was received in this court on 25th April. On 25th May I directed an oral hearing on notice, with appeal to follow if permission granted, and that was fixed for today.
12. We have conducted today's hearing without formally granting permission, but only because it was obvious that the local authority have a case which deserves careful consideration. It has been extremely persuasively put by Mr Turner QC, who has laid the foundation for his oral submissions with a comprehensive skeleton argument. He makes many criticisms of the judge, some of which I need not deal with since they have been, in my opinion, well answered by the skeleton filed by Mr Horowitz QC for the father, supported by the skeleton that Miss Quinn has prepared for the mother. But Mr Turner's essential thrust is that the judge could not possibly, on the very slender evidence that the parents had given beyond the technical issue of mechanism, have concluded that there was no need for a protective role in relation to J. The very grave injuries suffered by H, admitted but not fully explained by the father, must inevitably have led any judge to the conclusion that the court's continuing protective function had to be maintained, at least until the disposal hearing. The proper way of maintaining that control was by the making of an interim care order, having found the threshold to be satisfied on the inevitable risk of harm to J where H has been proved and admitted to have suffered such severe injury. Mr Horowitz's response is essentially to support the line that the judge took.
13. It is very easy, with the advantage of hindsight, to find shortcoming in the process in the court between 9th and 11th April. Of course, the scene shifted dramatically, with the doctor first accepting the father's account and then rejecting it; then, after the court process, accepting it again. Obviously, the decision to proceed to a judicial determination effectively on submissions on 11th April resulted from the local authority's confidence that a threshold finding in relation to J was almost inevitable given the gravity of the injury suffered by H. But, with hindsight, it is easy to analyse that, once Dr Saunders had reverted to his agreement with Dr Chapman, there was very little evidence before the court on what was the primary remaining issue, namely whether the threshold criteria were made out in respect of J. All that there was were the written statements and the unchallenged evidence of the parents.
14. In a perfect world there is, in my judgment, no doubt at all that there should have been a profounder investigation on 11th April. The local authority, if they did not wish to end up with a judicial statement that the father's evidence was unchallenged and corroborated, had to put him to the test by cross-examination. Mr Turner says, "What could they have put?" But he has himself drawn attention to the document at page 174 in section E of the bundle: a social work interview with the mother on 5th April in which she expressed all sorts of anxieties in the area of trusting the father. The obligation on the parents to go into the witness-box again on 11th April was perhaps less obvious since, as has been submitted, there was very little more that they could say beyond that which they had said on 9th April. So in my judgment the shortcoming of the investigation preceding the conclusion is the result of a rapidly shifting scene which nobody had much opportunity to ponder.
15. Decisions which are taken quickly are often subsequently identified as flawed and no blame attaches to anybody: it is simply one of those things. The judge dealt with the submissions that had been advanced adequately in his judgment. Of course, it is possible to criticise the arrangement of the material within the judgment. The issues dealt with in paragraphs 12 and 13 should ideally have preceded his conclusion in paragraph 11. But it would be quite wrong to adopt an over-analytical approach to an extempore judgment in the circumstances in which this judge was asked to arbitrate on three disputed paragraphs of what was otherwise an agreed history.
16. The question that must be addressed today is whether this court has such concern as to justify the elaboration of returning the case to the County Court for retrial on fuller evidence. I am extremely loath to take that course since it inevitably leads to significant additional costs and, more importantly, significant additional delay, which would be almost certain to derail the timetable for the disposal hearing on 8th October. The essential question is, in my opinion, whether the judge had seen and heard enough of the parents to repose trust in them. That is essentially a function for the trial judge. This was an extremely experienced public law judge and I cannot think that, had he felt that the course which he took exposed J to a measurable risk, he would have contemplated it for one moment. Obviously, if between now and the hearing of disposal any material emerges that was not available to and considered by the judge, whether it be factual or opinion, that does not preclude the local authority from reopening the issue of J's safety at the disposal.
17. I myself regret the fact that the forensic divide between the local authority and the parents seems to have impeded the commencement of therapy for the father. Whatever may be the quality of his relationship with J, the gravity of the injuries inflicted on H and the inherent danger that lies in the emotional forces that caused those injuries must be addressed therapeutically. Seemingly, the father was able to establish a therapeutic relationship with Dr Beckett. There has been some disagreement as to whether the local authority prohibited the continuation of that relationship. Certainly nobody has done anything to put an alternative therapeutic package in place between February and today, or between April and today. So it seems to me that that is a matter of first priority. Mr Horowitz says that the father has, through the army, had a referral to a clinic in Wantage. It seems to me that the identification of the appropriate therapeutic package needs to be collaborative. It seems to me important that the local authority should know precisely what the proposal is, so that they have the opportunity to comment on it and possibly to assist the father in finding something that might be of greater use.
18. I have not yet mentioned the role of the guardian, but it is important to say that this appeal has been supported throughout by the guardian ad litem. The guardian has been good enough to attend this hearing today. Equally, his counsel was good enough to write to the court some time ago to explain that he would not appear today simply to save unnecessary costs. It is, in my opinion, important that the guardian too should be fully informed as to the therapeutic package that may be available to the father through the army doctor and that he too should have the opportunity of commenting and contributing to this very important work. It is, in my opinion, important that there should be a therapeutic programme, not only established, but also with some history behind it, before any judge has to consider the disposal of proceedings in relation to H on and after 8th October.
19. In summary, therefore, although Mr Turner has undoubtedly brought into prominence the weak foundation upon which this finding rests, I would not, in the exercise of a pragmatic discretion, order a retrial at this stage. I would accordingly simply grant permission and dismiss the appeal.
20. MR JUSTICE ASTILL:I agree.
21. However, it seems too obvious to state that an order, interim or final, should only be made after a proper and complete inquiry. There was, in my view, no such hearing before the judge made his decision in this case. The choices before this court, therefore, are stark. Either it should be sent back for a proper adjudication or a pragmatic decision made, bearing in mind the paramount interests of the child. I accept the decision arrived at by my Lord as the most constructive course, for the reasons that he has given. But I do so with some disquiet at the making of an order (or, in this case, the failure to make an order) without an appropriate hearing preceding it.
Order: permission to appeal granted and appeal dismissed; public funded costs assessments for the respondents.