England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE BERNSTEIN)

		Royal Courts of Justice Strand London WC2A 2LL Friday 7 September 2001

1. LORD JUSTICE PETER GIBSON:I would ask Lady Justice Hale to give the first judgment
2. LADY JUSTICE HALE: This is the parents application for permission to appeal against the decision of Her Honour Judge Bernstein made on 6 November 2000 in the Liverpool County Court. The application was set down on 23 July 2001. It is eight months out of time and permission to extend time is required. The applicants also seek permission to adduce fresh evidence.
3. These were care proceedings in relation to C . She was who was born on 19 November 1999 and was less than one year, but is now 22 months old. She is her mother's third child. The mother is still very young but she has had most unhappy experiences in her life to date both in her own childhood and in her adult life and with her own children. Her first was removed because of serious risks within the home, and placed for adoption, ultimately with the mother's consent.
4. The mother's second child died when only one month old. The post mortem concluded this was sudden infant death syndrome. It is important to emphasise that there is no suggestion in the evidence I have received that it was anything other than that.
5. When C was born the parents appeared to be mending their domestic ways, heeding advice and the baby made reasonable progress. On 14 March 2000, aged four months, she was taken by her parents to hospital with a history of having stopped breathing an being resuscitated by the mother. She was kept in hospital for observation and tests. Nothing of concern was ever found. The mother stayed overnight with C in hospital from 16 to 17 March, the day before she was due to go to another hospital for an MRI scan. There was an incident around midnight when the apnoea alarm beeped. Staff Nurses Lambert and Hollis went to the cubicle, which was the nearest one to their nursing stay station. C was found to be having breathing difficulties and to be in urgent need of treatment. In the nursing notes the matter is put thus:

"C was lying still and looked very pale but slightly cyanosed around lips. Her eyes were open but staring. She then began to make grunting noises. On transferring her to the treatment room she was found to be very pale & floppy on handling. 222 call was put out. Red marks evident on neck and behind (L) ear, also slight red blood staining from (L) nostril."

6. Having taken her to the treatment room,the nurses called the medical staff. C was given oxygen and she recovered over the course of the night.
7. The consultant paediatrician who attended, Dr O'Halloran, suspected that something untoward might have occurred. This was confirmed in a later report from Dr Sills, a consultant paediatrician jointly instructed through the guardian at ad litem for the purpose of these proceedings.
8. The proceedings took their usual course. On discharge from hospital C was fostered. Generous contact was arranged, but the parents did not attend from late June until the beginning of September. By that stage the mother was pregnant again. Nor did the parents cooperate in the assessment proposed by social workers, although the mother did cooperate with an assessment by Dr Bluglass, a well-known psychiatrist specialising in assessing parents' mental states and personalities in cases of alleged factitious illness.
9. The trial took place over six days in October 2000 and judgment was reserved until 6 November. The judge's principal finding of fact was that "[C's] 'episode' was the result of some force intentionally applied to her by the mother and that the apnoea alarm was switched off by the mother so as to prevent detection of her actions". The judge made a care order wit a care plan for adoption hence she allowed the local authority to bring contact with the parents to an end. We are told that C was placed with long term foster parents with view to adoption in January of this year.
10. The question first arises of an extension of time. The father announced his intention to appeal during the hearing. He was concerned about the expert evidence, but there was no application to adjourn or to obtain further evidence. After the trial the parents consulted two new firms of solicitors but that came to nothing. The muster consulted her present solicitors in January. On 17 February 2000 the mother gave birth to D. Emergency protection proceedings were taken immediately. Public funding for an appeal i relation to C was granted on on 27 February 2001. According to the affidavit of her solicitor, the mother was then concentrating on proceedings relating to the new baby. Extensive enquiries were made to try and find a residential placement where they could be assessed. All of these failed because of the judge's findings in relation to C. In April the mother decided that she wished to concentrate on an appeal against those findings. The papers had been sent to junior counsel in March, advice had been given in May and leading counsel was consulted at the end of May. He advised that transcripts be obtained and his advice and draft grounds of appeal were prepared in July.
11. That is the history behind the delay. But with such a young child time is of the absolute essence. C cannot afford to wait while her parents concentrate on other matters. She has seen very little of them for some considerable time; indeed that was the case for a good deal of last year. Only, therefore, if the merits of a proposed appeal are strong could permission to appeal be contemplated. Whatever the eventual purpose of that appeal, it would inevitably introduce delay and uncertainty into C's life at an absolutely crucial time in her development. That should not be permitted without a very good reason indeed.
12. I turn to the merits of the application. The difficulty with Mr Levy QC on behalf of the mother faces is that he acknowledges that a court may be reluctant to overturn the order. He acknowledges that there was a great deal of material in this case other than the judge's findings in relation to the incident of the 16/17 March which might have justified the making of the orders in this case. These are convenient listed in the skeleton argument of Miss Haas QC, on behalf of the local authority. They include the opinion of Dr Bluglass as to the mother's parenting skills and capacity to learn; the mother's lack of commitment towards the child; the parents' difficulties in relation to cooperation with social workers; the various, comparatively minor but not insignificant, warnings as to the proper care of C that had been ignored; and many problems that there have been in the relationship between mother and father themselves. The judge herself concluded on the evidence that "in such circumstances C would, in my view, inevitably suffer emotional, if not physical harm".
13. Hence the real reason for this application is not so much the desire to challenge the care order in relation to C, although Mr Levy acknowledges that would be the parent's desire, but the desire to challenge the findings about the inds incident. That is because of the impact of or potential impact upon the care of her later children. Proceedings have already been brought in relation to D and we understand that the mother is again pregnant.
14. The general principle is that appeals are brought against orders not the fines dings of fact general principle in themselves. In the case of Re B (Split hearing: jurisdiction) [2000] 1 FLR 344, the Court of Appeal held that, where in care proceedings there had been a direction for a split for a split trial, where the first part of the proceedings determines the facts relevant to the threshold criteria and the second part of the proceedings determines what the outcome for the child and family should be, it is open to the Court of Appeal to entertain an appeal against those findings of fact after the first part of the hearing and before the second . That makes obvious sense because the outcome of the second part of the hearing in relation to the particular child concerned may be determined by the findings of fact. It applies with much less force in relation to a proposed appeal which is relevant in reality to subsequent children.
15. I acknowledge and appreciate the problem facing the parents and their advisers in a situation such as this. I would not wish to express a view that an appeal can never be brought in these circumstances. This is not the occasion on which to determine such an important issue. But it is worth bearing in mind that if subsequent evidence is discovered, which may be relevant to the bearing which earlier findings of fact should have on the future of younger children, then the later court is not bound by the earlier findings . I decided that in the case of re B(Minors) (Care Proceedings Issue Estoppel) [1997] Fam. 117, which this court approved by implication in the later Re B case. I make those observation because of the application to introduce fresh evidence to which I will return.
16. What is the basis of the judge's findings of fact? It relies principally on the evidence of Staff Nurse Lambert. Her witness statement rehearses an earlier incident that night when the alarm had beeped. She had gone into the cubicle after a pause and found that the mother had turned the alarm off. Nurse Lambert had turned it back on. That incident is not recorded in the nursing notes. Further the nursing notes had given an account of the later and more important incident, but said nothing about whether the alarm was on or off. In her first witness statement, which was based on handwritten notes dated 17 March, Nurse Lambert said that when she went into the cubicle the alarm was turned off and that she had turned it back on . In her witness statement she used the word "instinctively". However, shortly after this she made a second statement in which she said that, on reflection, she had not turned the alarm back on. At no stage did she say that she had ever turned it off. In her second witness statement she said that she was certain that, when she entered the cubicle and checked the apnoea monitor, the red light was illuminated and the switch was down in the off position. It is clear from the judge's findings that she accepted that when the nurses went into the cubicle the switch was in the "off" position.
17. Nurse Lambert was not available to give oral evidence at the trial. She could not therefore be cross-examined. It is argued that either the judge should not have admitted her evidence or that she should have expressly directed herself as to the weight to be given to it and explained her approach to this whole issue in some detail.
18. It is worth poiting out that an no time was any application made to insist that Nurse Lambert attend the hearing or any objection taken to the presence of her evidence in the material before the judge. The second was obviously right; hearsay evidence is admissible in children's cases. Irrespective of the Civil Evidence Act 1995. However it is important for judges to bear in mind that hearsay evidence may be less cogent than evidence which has been tested in the cross examination in court.
19. Mr Levy makes various points about what could have been put to Nurse Lambert in cross examination. Why was there no reference to the 10:30 incident; why was there no reference to the alarm being off in the nursing notes; why did she change her account about having switched the alarm back on in her two witness statements; and what were her feelines about the mother? The judge makes some reference to the feelings of antipathy that the nurses may have had toward the mother. All this, argues Mr Levy, could and should have been put to Nurse Lambert in cross-examination. It was he goes not open to the judge to make the finding about the alarm, which she did, without that having taken place.
20. It appears that submission was not made to the judge below but there are other problems with it as well. There was evidence upon which the judge could quite properly conclude that the mother had indeed switched off the alarm. Nurse Lambert at no stage says that she herself switched it off. All were agreed that a single beep was made which caused the nurses to come into the cubicle. A single beep is emitted when the alarm is switched off. The alarm must have been switched off by the time the baby was lifted out of the cot to be taken for treatment, because it would otherwise have sounded them. The evidence was that no other noise was emitted by this alarm after the nurses had entered the room.
21. There was, therefore, evidence which justified the judge in reaching her conclusion, in relation to the alarm. There was also evidence which justified the judge reaching her conclusion as to what had caused the problem to C. This was not only the evidence of Dr O'Halloran and Dr Sills but it was the combination of evidence which the judge heard. It must always be borne in mind that the judge, who has seen and heard the evidence, and that includes the parents, (the mother in this particular case) take into account everything that she has seen and heard and weighing it appropriately and reaching her conclusions.
22. It is also clear frm the material presented before us that the judge was where that Nurse Lambert had not given evidence and was herself reluctant to give that evidence more weight than it deserved. This emerges from remarks which the judge made in the course of the hearing. It is the case that she did not expressly direct herself in relation to it, as Mr Levy complains that she should have done. In retrospect there are many judgments in which one wishes one had directed oneself as leading counsel subsequently suggest that one should have done. If it has been suggested in a skeleton argument presented at the time one should do that, that may be a legitimate matter of criticism, but hindsight is a wonderful thing. I would be reluctant to criticise this judgment which was in many ways very full, careful, humane and cautious. For that reason it certainly does not lead me to conclude on the basis of all the evidence that was before the judge that an appeal on this matter would stand a real prospect of success.
23. As far as other points raised by Mr Levy are concerned, he argues that the doctors' conclusions were over influenced by what they had been told by the nurses and amounted to no more than suspicion. I regret to say that I cannot share that view. There was material on which it was entirely open to to the doctors to reach the conclusion on the balance of probabilities that there had been untoward interference with this child on that night. The matter of the alarm cannot be ignored. It was an important part of those conclusions, but there were other matters as well. These include the nose bleed; the intensefication of the red marks on the child's neck and also other marks on the child; the mother's behaviour and attitude over that night and at other times. Mr Levy says these are only concerns and he does not like the word "concerns". He is right not to do so if that is all they are but these are all evidence and totted up they can lead to a conclusion. I find this particular case no reason to disagree with it.
24. One has to beware drawing too hasty conclusions. In previous cases it may have been suggested that, whereas one cot death may be a natural and tragic event, two are more su suspicious. There is now reason to think that the reverse may be the case, that there may be a genetic deficiency in a child's immune system making a child more susceptible to reacting badly to bacterial infections which could be undetected and yet lead to a sudden death.
25. The fresh evidence Mr Levy wishes to adduce is a report from a scientist Dr Drucker, to that effect. This is an extremely interesting document. It, or evidence to that effect, may will feature in cases such as this in the future. There may be other evidence which casts doubt upon this hypothesis. We have read the report, although we have not given permission for it to be adduced as fresh evidence. The most recent publication upon which it is based does seem to have been after the trial but on the other hand the hypothesis has been developed in course of numerous research studies over the years. I would be prepared to give it the benefit of the Ladd v Marshall doubt for that purpose.
26. However, I cannot see that this argument would stand any prospect of making a difference in C's case. It cannot seriously be contemplated so late in the day that the progress of C's life should be halted while an appeal is brought, fresh evidence is adduced, further fresh evidence no doubt sought by the local authority or on behalf of the guardian, a re-trial ordered, tests done on C herself and, perhaps, it is possible on her deceased sister, for the purpose only of challenging the finding as opposed to the conclusion reached in her case. The judge expressly stated that the death of the older child had no pat to play in the findings which she made in realtion to C. If that debate is to happen, it should in my view happen in the context of live proceedings about a real child whose future is likely to be affected by the outcome. I would not therefore wish is suggest that there is no relevance of any relevance to any fresh evidence of this sort to any proceedings concerning the mother's later children.
27. For all those reasons I would refuse these applications.
28. LORD JUSTICE PETER GIBSON: I agree.
Order: All applications refused. No order as to costs.