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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W (A Child), Re [2002] EWCA Civ 1618 (24 September 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1618.html
Cite as: [2002] EWCA Civ 1618
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HIS HONOUR JUDGE O'BRIEN)
Strand London, WC2 Tuesday, 24 September 2002 |
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B e f o r e :
and
LORD JUSTICE MANCE
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| W (A child) |
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(Official Shorthand Writers to the Court)
MR R NEWTON (instructed by Essex County Council, Colchester CM1 1LX) appeared on behalf of the Respondent.
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- LORD JUSTICE THORPE: This is an appeal brought by the parents against a ruling of His Honour Judge O'Brien given on 29 August 2002 in the Chelmsford County Court. He dismissed their application for permission to disclose the papers in the case to Dr de Sousa. He went on, however, to grant permission to appeal and asked this court to consider an expedited hearing. The papers reached the Court of Appeal last week and I directed a hearing this week: so to that extent we have met the judge's request.
- The issue before the court on 29 August was a very simple issue: should the court accede to an application filed by letter for relief which we cannot precisely identify, since the letter is not in the bundle, nor is it available in court this morning. But the suggestion from Mr Hollow is that the relief sought is probably mirrored in the notice of application which seeks an order extending to five paragraphs. The sum total of those paragraphs certainly gives the impression that the parents were seeking permission to reopen a causation hearing that was conducted by the judge on 6 and 7 June 2002 and led him to the conclusion that the little boy, C, born on 11 May 2001, had suffered non-accidental injuries whilst in the care of his parents. The judge, of course, was unable to go beyond that and fix responsibility on one or other of them. But that finding has proved impossible for the parents to accept and it is in those circumstances that they pin their hopes on Dr de Sousa at Great Ormond Street, who might have a scientific view that is more supportive of their denial than the scientific views advanced by the experts at the hearing in June.
- The judge certainly in his judgment, as noted by Mr Hollow, seems to have conceived it as an application to reopen, and he seems to have doubted his power to accede. Certainly this morning's hearing has clarified that at this stage Mr Hollow would be perfectly content to gain paragraphs 1 and 2, as sought at page 28 of his notice, namely permission to disclose the papers to Dr de Sousa and permission to Dr de Sousa to examine C. Mr Newton, for the local authority, very sensibly accepted that, thus limited, the appeal is irresistible and he consents to it.
- The misunderstanding in the county court, Mr Hollow has immediately accepted, may have been contributed to by the parents' letter of application, and even by the way the issue was argued on 29 August.
- So it seems to me that the value of this appeal has been at least to clarify what the issue was and to ensure that the parents can proceed to instruct Dr de Sousa on a realistic basis, putting before him the litigation papers, which are obviously essential for him to guide them to some realistic and objective understanding of the realities.
- So for all those reasons I would allow the appeal and substitute for the order below the order sought in paragraphs 1 and 2 of the notice of application.
- LORD JUSTICE MANCE: I agree and there is nothing further I can usefully add.