COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HER HONOUR JUDGE NEWTON
MANCHESTER COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
MRS JUSTICE BLACK
| GW & PW
|- v -
|OLDHAM METROPOLITAN BOROUGH COUNCIL
KPW ((A Child) by his guardian)
Anthony Hayden QC & Bansa Singh-Hayer (instructed by Platt Halpern) for the 2nd Appellant (Father)
Sarah Singleton (instructed by Oldham Metropolitan Borough Council) for the 1st Respondent
Erica Carleton (instructed by Rothwell & Evans – on behalf of the guardian) for the 2nd Respondent
Hearing date : 26th July 2005
Crown Copyright ©
Lord Justice Wall :
(a) What injuries, if any, had K sustained?
(b) Were the injuries caused accidentally or non-accidentally or is their cause unascertained?
(c) If the injuries were inflicted non-accidentally, by whom were they inflicted?
(d) If they were inflicted by one of the parents acting alone, did the other parent fail to protect K?
(e) Were the threshold criteria at section 31 of the Children Act 1989 met?
(a) K had suffered an acute haemorrhage within his brain substance in the front parietal lobes, more particularly on the left. A subsequent MRI scan had shown evidence of sub-acute haemorrhage in both hemispheres. The cystic nature of the abnormalities on the MRI scan showed evidence of sub-cortical white matter tears. The tears were grave injuries. Without treatment they could have been life threatening. K also sustained a subdural haematoma, that is a tiny collection, which had no clinical significance. As a result of the injuries, K had been floppy, lethargic and difficult to feed. He had developed seizures which were difficult to control. On the balance of probabilities and on the information currently available, he was unlikely to recover fully without some form of neurological deficit likely to affect his executive functions in terms of concentration and learning.
(b) The injuries had been caused non-accidentally. Their probable cause was a single shaking episode involving impact with considerable deceleration forces being applied to the brain. Although the sub-dural haematoma might possibly have arisen as a birth injury, on the balance of probability it was caused during the same incident as the sub-cortical white matter tears, but that finding added nothing of significance because it was the sub-cortical white matter tears that were the critical and significant injury
(c) The injuries had been caused by one of K's parents, but the judge was not able to say which.
(d) Given the unsatisfactory nature of the parents' evidence, it was not a useful exercise to address failure to protect.
(e) The threshold criteria under section 31 of the Children Act 1989 were established.
"In many cases (probably the majority) a clear picture will emerge from a constellation of factors (eg paediatric, radiological, parental history, medical records) which will cumulatively point the court towards certain conclusions. Though those conclusions may be resisted by parents, it would be both unrealistic and unnecessary to permit parents to obtain "mirror reports" in every discipline. In a certain number of cases, however, eg non-accidental head injury (NAHI), or pathologically "unascertained" infant death, certain evidence may become pivotal and by its very nature not easily receptive to a challenge in the absence of any other expert opinion. In our submission, in those cases, the court should be slow to decline an application for a second expert. Strict case management (in accordance with the protocol) should also permit such evidence to be identified within a reasonable timescale."
27…… Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate, to rely on the evidence of another expert.
28. In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but that the last step. If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.
"Article 6 could not possibly have anything to add to the issue on this appeal. The provisions of the CPR, to which I have referred, make it clear that the obligation on the court is to deal with cases justly. If, having agreed to a joint expert's report a party subsequently wishes to call evidence, and it would be unjust having regard to the overriding objective of the CPR not to allow that party to call evidence, they must be allowed to call it. "
Two further points
"….. the judge invariably surveys a wide canvass, including a detailed history of the parents' lives, their relationship and their interaction with professionals. There will be many contributions to this context, family members, neighbours, health records, as well as the observation of professionals such as social workers, health visitors and children's guardian."
Other matters: the position of the local authority
The position of the guardian
Mrs. Justice Black:
Lord Justice Thorpe: