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 PETERBOROUGH COUNTY COURT
(HIS HONOUR JUDGE MCKITTRICK)

		Royal Courts of Justice Strand London, WC2
		Wednesday, 12th April 2006

1. LORD JUSTICE PILL: Lord Justice Wall will give the first judgment.
2. LORD JUSTICE WALL: This application for permission to appeal relates to female child called M M, who was born 13 weeks premature on 8th September 2005. Without adjusting for her prematurity, she is now thus aged seven months. She was born by emergency Caesarean section and had to remain in hospital for a period of some ten weeks. She was discharged to her parents' care on 18th November 2005.
3. M is the subject of an interim care order made in proceedings brought under Part IV of the Children Act 1989 by the Peterborough City Council. She is currently residing with foster parents pursuant to that order, which was made by His Honour Judge McKittrick on 26th January 2006. It is that order which is the subject of the application for permission.
4. Although this matter was listed by Lord Justice Wilson as an application for permission to appeal with appeal to follow if permission granted on 7th March 2006, we have in effect heard it as a substantive appeal. For my part, I would grant permission and direct the balance of this judgment to the substance of the appeal itself.
5. Whilst I am dealing with the matter of timing, I notice that the interim care order, having been made on 26th January, the appellant's notice was put in very promptly on 7th February 2006. Most unfortunately, the papers were not placed before my Lord until 7th March 2006 (that is to say a month later), and the appeal is only being heard today. This betokens substantial delays in this building which I propose to investigate in due course.
6. I mention it because there has been some suggestion in argument that it is unusual, and indeed in some cases inappropriate, for applications to be made for permission to appeal against interim orders. I say at once that in my judgment this application was properly made and no point arises on the fact that it is an interim order.
7. M is the subject of care proceedings because on the evening of 3rd December 2005, when she was chronologically 12 weeks old, she suffered what can only be described as catastrophic injuries whilst in the care of her father. I will of course describe those injuries in just a moment. But before doing so, I need to identify the parties to the proceedings themselves.
8. The applicant for permission, the appellant, is M's mother, AM. She was born on 27th October 1983. She is thus 22. M's father is a man called LR. He was born on 14th April 1984 and is rising 22.
9. Ms M has two older children. They are C, born on 24th September 1998 and so seven; and J, born on 4th May 2000 and so rising six. The father of C is a man called G C, whose current whereabouts appear to be unknown. The father of J is a man called D H. Neither father appears to play any role in the life of his child.
10. From the dates which I have just given, it is apparent that Ms M was 14 when C was born, 16 when J was born and 21 when M was born. It is also to be noted that all three children have different fathers.
11. It is not, in these circumstances, to my mind surprising that there has been previous social services involvement with Ms M and her children. What, however, is remarkable is that despite the age she was when C and J were born, both children remain in her care, although for reasons which are not entirely clear to me and I have to say were not clarified by counsel for the local authority this morning, the local authority has joined them in the care proceedings. However, they both appear to be happy and well-balanced children: both are going to school. There is no question of them being removed from their mother's care. I hope that in due course the local authority will give further consideration to the appropriateness of them being subject to these proceedings.
12. The other important adult from M's point of view is her maternal grandmother, J S.
13. Ms M and Mr R were not living together when M was conceived. They decided to cohabit, according to Ms M, after M was born. She says he got on well with her other two children, and was delighted to have a daughter of his own. She also says he handled M well whilst she was in hospital. Furthermore, the emergency surgery she had undergone had left her in pain and she needed support and help at home.
14. Ms M's evidence before the judge was that on 3rd December 2005 she had arranged to spend the day and the evening with her mother. Her two older children were to spend the day and the night with their maternal step-grandfather, and Mr R had been left to look after the baby, M, all day. The plan was for Ms M to return home in the early evening, change and then go out for a drink with her mother. In the event, she was held up and did not come home. She says she telephoned at about 7.30 and was told all was well. She said she had no hesitation in leaving M in her father's care. However, when she rang at about 11.30 Mr R was apparently distraught. He said he had had an accident with M and that Ms M was to go straight to the accident and emergency department of the local hospital, which is what she did.
15. Mr R's case appears to be that he was in a downstairs room of the parents' accommodation, holding the baby. His mobile phone rang upstairs. He ran up the stairs, which were uncarpeted, holding M, and in so doing fell over on top of the child thereby crushing her.
16. The judge described her injuries in the following terms. She had a head and brain injury. She had fractures to the eighth, ninth and tenth left ribs. She had bilateral bucket handle and metaphyseal corner fractures along the medial and lateral aspects of both distal and femoral metaphyses and probably subtle fracture along the posterior aspect of the right distalibial metaphysis. She had external linear bruising to the lower legs, frontal aspect. She had bruising to the upper right abdomen and retinal haemorrhages to the right eye. The skull injury was, in particular, of substantial severity and is likely to leave the child with lasting disability.
17. What actually happened on that evening has not of course as yet been fully investigated. It will, in due course, be critical to know if there is a medical consensus that the injuries are consistent with the father's account and that they all occurred on the same occasion. In this respect it is I think fair to point out that the latest radiological evidence would appear to indicate that the metaphyseal injuries may well not be fractures at all, but subtle (what one might call in loose terms) malformations. That is a matter that will need to be fully investigated. However, there is nothing in the papers to suggest that any injury occurred to M prior to 3rd December 2005, and it will be remembered that she had in any event been in hospital until 18th November.
18. It is in this context in my view of some relevance that the paediatrician in charge of M at the local hospital appears to take the view that her injuries are broadly consistent with Mr R's account. However, what is also clear is that Mr R had been drinking while he was caring for M. There is some conflicting evidence about the amount he had consumed. The ambulancemen who transported M to hospital smelled alcohol on his breath, and Mr R admitted to the police that he had bought a litre bottle of San Miguel. Quite how much he had consumed no doubt is a matter which will need to be investigated in due course.
19. There was, however, no evidence before the judge that Ms M was in any way involved in M's injuries, and every evidence that when she learned about them she rushed straight to the hospital in a state of considerable distress. Furthermore, she regularly visited M whilst the baby was detained in hospital, and expresses herself extremely anxious to resume M's care. When faced at the interim hearing before the judge with a choice between caring for M and caring for the two older children, she was manifestly distressed, as the transcript of her evidence demonstrates.
20. Inevitably, the local authority took care proceedings in relation to M, and those proceedings were of course immediately transferred to the county court on the ground of their complexity. It was thus that they came before the judge. The issue for him was clear. Should he, as the local authority was asking, make an interim care order, with the interim care plan being for M to be fostered by experienced foster parents: or should he, as the mother sought, allow her to care for M at home, albeit on the basis that Mr R left the property until the matter had been fully investigated and it was deemed safe for him to return?
21. The judge found that the threshold criteria for an interim care order were made out. In that, in my judgment, he was plainly correct. M had suffered extremely serious injuries in her father's care. There was some evidence, if not of culpability, certainly of negligence. His account that it was an accident plainly needed investigation. The threshold criteria for interim care orders are set out in section 38(2) of the Act:

"A court shall not make an interim care order or interim supervision order under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)."

22. Section 31(2) of course, as is well known, provides that:

"A court may only make a care order or supervision order if it is satisfied--

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to--

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; ..."

Mr R, in my judgment properly, conceded before the judge that the threshold criteria for an interim care order were met.

23. However, the mere fact that the threshold criteria for an interim care order are met does not mean that the court has to make an interim care order. All it means is that the gateway for the making of such an order has been opened, and the court has jurisdiction to make it. The matter then becomes one of welfare, to which section 1 of the Act applies. Should an order be made? Is an order necessary? If so, what order should there be? In the context of a case such as this, the immediate question becomes whether the child's welfare requires the displacement of the conventional parental right to care for him or her.
24. In the instant case, the judge made an interim care order. He rejected Ms M's plea to be allowed to care for M, and approved the local authority's interim care plan which was that M should be placed with foster parents, unfortunately some distance from where Ms M lived, and that Ms M should have regular contact with the baby. Mr R's contact was to be less and to be supervised. In the meantime, evidence was to be collected and assessments made, in particular it seems an assessment of Ms S to see if she was a fit person to care for M.
25. The judge correctly reminded himself that in deciding whether or not to make an interim order, M's welfare was his paramount consideration and that the order he was making was interim. He was acutely aware that further evidence was required and that a police investigation was continuing. His view was that he had to do his best to protect M on the information available to him. The injuries were clearly extremely serious, and whilst he said he respected the evidence of the consultant paediatrician, Dr Shellshear, that the injuries were consistent with the account given by Mr R, there were, he said, inconsistencies in the father's account which themselves needed investigation. The judge concluded accordingly that:

"... there are real issues that the injuries sustained by [M] may well be non-accidental sufficient to justify my making a finding within the terms of s.38."

26. Speaking for myself, I do not, as I say, criticise the judge for finding the section 38(2) interim care order criteria made out. I am, however, far less happy about the way he treated Ms M, and her capacity to care for M in the absence of Mr R.
27. The judge referred to the fact that the mother had previously been engaged in a relationship with a violent partner (that is Mr H, to whom I have already referred), and that in the summer of 2005, before M's birth, there had been an incident during the course of which Mr R had struck the wall of their accommodation during the course of an argument. The judge was sceptical about the mother's reliance on Mr R's parenting and the fact that they had co-parented for a short time.
28. However, and this to my mind is of some significance, the judge specifically acquitted the mother of any failure to protect by going out as she did on the evening of 3rd December. The judge said:

"For what it is worth, I am not persuaded that by going out with her mother shopping, by being away all day, by merely phoning before apparently going out to the town in Peterborough, that amounts to neglectful conduct within the terms that I can properly apply to the provisions of the Children Act. My preliminary view on that is she had not been neglectful in so doing."

29. In those circumstances, one has to ask the rhetorical question: what other material was there before the judge which indicated that the mother was either in any way responsible for M's injuries or in any way incapable of caring for the child? The evidence in relation to her two older children was that they were well and thriving. She was plainly not present on the occasion when M had been injured. She plainly had nothing to do with that injury, and, subject to any finding that M's injuries were occasioned on different occasions rather than the one occasion, she had no responsibility, in my view, either for injuring M or failing to protect. All the evidence was that, despite, as I say, the young age at which she had her two older children, she was caring for them in a perfectly adequate fashion.
30. One of the features that puzzles me about the judgment is that the judge at no point appears to consider the alternative option which the statute itself offers him, namely an interim residence order in the mother's favour and an interim supervision order in favour of the local authority. The judge appears to have considered the choice which he faced as being starkly either interim care order with the child placed with foster carers, or an interim residence order in favour of the mother, which, subject to the provisions of section 38, might well have had the effect of terminating the proceedings.
31. In my judgment, the judge's failure to consider this option, which was facing him on the face of the statute itself, is of itself sufficient to vitiate his decision. The mother was very clear, and Mr R in terms offered to leave the mother's accommodation to enable the child to return. There was no evidence that the mother, in my view, was incapable of caring for the child and the only anxiety, and this is one to which I will return, is that the presence of the two older children and the combination of her duties to care for all three might put M at risk.
32. The judge approached his task in relation to potential further injury to M by pointing out that she had a difficult path ahead. She was likely to need neurological intervention of some sort, and it was in his view imperative that she did not get knocked. It was imperative he said that she had a very high level of care. It seems to me that the ratio of his judgment can really be found in paragraph 11, which I will read in full:

"11. Although it is rightly explored, does a placement with a teenager? Does a placement with a young child? Or, say, a boisterous dog pose problems given the care, given the isolation and protection from risk that this young child needs."

I interpolate at this point that I find this sentence particularly puzzling. I do not understand the reference to teenager, and I do not understand the reference to a boisterous dog, since the evidence was that Ms M did not have a pet. I understand the reference to isolation and protection from risk that the child required, but that was a matter of evidence and again I will address that point in just a moment. I resume the quotation:

"The child must not be placed where she might be accidentally knocked. I do not find it necessary to make specific findings about that, and I approach this with of course a respect of the mother's point of view, and I do not for one moment dismiss her point of view and I do not for one moment trivialise the care that she wishes to give to [M] and her two other children, but [M] I am afraid (and it may sound harsh to her ears, and I do not mean it in this way) the [M] who was released from hospital at the end of the prematurity is not the child who is about to be released from hospital now. Unfortunately things have moved on in an adverse way and although everyone hopes that [M] makes a full and as complete a recovery as possible, the next period is absolutely vital that she must be protected from risk and I am afraid I cannot put it in any more or starker way than that. That is the way the court feels about the matter."

33. The judge goes on then in the following paragraph to approve the care plan with foster carers, alas not in the locality but arrangements made for transportation. He then reminds himself, perfectly properly, that this is a holding exercise, that there will need to be other assessments, that no options are ruled in or finally out, but concludes by saying that there is:

"... the very serious need that this child be protected physically and she has a period of security and safety and removal of the potential for risk while the on-going enquiries take place, so that those are my findings on the evidence before this court today and subject to the caveat about the review that I have referred to, that is all I would be prepared to say."

34. If therefore the case which the judge was making was that the child had special care needs and therefore needed extra special care, one looks to see what was the evidence in relation to that. Speaking for myself, I find this a very unsatisfactory aspect of the case. There were the briefest possible reports from the consultant neurosurgeons, Mr Hockley and Ms Fernandes, neither of which enlightens one in this respect, except that they refer to the need for some sort of surgical intervention in due course. When one looks to see what evidence there was as to the special care requirements the child had, one is left with a statement from a Rita Mease, the Named Nurse for Child Protection at the local hospital trust. This to my mind is a document which is in no way fatal to the mother's case. At that point, of course, M was still in hospital but it was for social rather than medical reasons and she was medically fit for discharge. That to my mind means that she was fit to be cared for at home: she did not need the special care required in hospital. The nurse goes on:

"There are however, particular needs which require her to be in a placement where she can have a one-to-one relationship with her carer as she needs lots of stimulation following her serious head injury. This stimulation and attention will be crucial in determining the extent of recovery as it is not known how much damage to the brain she has sustained as this will only become apparent further in the future. She also requires much more time than an average baby of her age with regard to feeding as it is sometimes difficult for her to take sufficient milk for her needs and this requires a degree of time and patience which may not be possible in an environment where there are several other small children to be cared for, as in the first foster placement identified for her. It would be easy for [M's] needs to be overlooked in such a family as her injury has meant that she is not a demanding baby who can make her needs known but needs carers who are aware of these without prompting.

She is also very vulnerable with regard to her head injury as this has left her with a large swelling on the side of her head which contains fluid but also brain tissue, as part of her skull has been displaced and will need to be reconstructed eventually. This means that if there were other toddlers or small children in the family she may be at risk of accidental injury. However, a family with older, school age children may be beneficial as they would be able to understand the risks to her but also offer a source of stimulation and activity.

Due to the likely impact of [M's] injuries on her future development, she has already been referred to the Child Development Unit and this, along with follow-up appointments in Cambridge, will mean that whoever is caring for her will need to be able to attend a multitude of hospital and therapeutic sessions for the foreseeable future. Her future carers will need to spend time with her to familiarise themselves with her feeding and administration of medications before her discharge."

35. I have deliberately read the whole of the nurse's statement because it seems to me, firstly, not to contain anything which would indicate that there are particular nursing needs which the child has which would be beyond the capacity of a normal adult, but also because, at least in some respects, it seems to support the mother's case that this child will need considerable stimulation and, rhetorically, who better to provide such stimulation than other children? We were, however, told by counsel for the local authority that enquiries have been made of Ms Mease as to what she meant by "school age children" and the answer came back that these were teenage children not what one normally think of as school age children, that is children over the age of five. I regard that as a highly unsatisfactory way for evidence to be produced, even on an interim hearing.
36. However, my view remains that, subject to help and support and a question mark over Ms M's capacity to care for the three children together, there is nothing to my mind in the evidence which would render her unfit or incapable of caring for M. Equally, she plainly did not have anything to do with the injuries which M suffered, and the judge specifically acquitted her of any responsibility in the field of neglect on that particular occasion.
37. In these circumstances, I have to say it is difficult to see how the judge's decision can be justified. For the local authority Mr Jerman sought to argue that the judge was justified, not only because of his anxieties about future care for the child, but also because of the historical matter which related to the relationships which Ms M had with the fathers of her previous children, which had of course involved elements of domestic violence; but elements in which it would appear that she was a victim rather than a perpetrator.
38. We were shown passages from the local authority's running case record, and I am bound to say that even on the basis that there is an issue in relation to one or more of the incidents put forward, there is a huge temporal gap before the events of 2005, when it is common ground Mr R struck the wall in temper, and the one incident that was relied upon is one fiercely in contention, that is an incident when it was said Ms M was drunk. In my judgment, therefore the historical material does not, as I read it, seek to support the judge's stance. Had this been a conventional appeal relating to the exercise of a judicial discretion, I would have no hesitation in saying in my view it was fatally flawed and that the matter would need to be reconsidered by a different judge on a separate occasion. In such circumstances I would allow the appeal and send the matter back for reconsideration.
39. The difficulty that arises in the instant case, as it seems to me, is that the matter has substantially moved on. The local authority has clearly reconsidered its position, and we have been given a number of documents which have come into existence since the judge made the interim order on 26th January. One of the most significant of these is a fresh interim care plan. The local authority was obviously conscious of its responsibilities, if possible, to keep M within the wider family and it caused an assessment to be carried out of Ms S. It did not do this itself. It contracted the matter out. That is not in any sense a matter of criticism. It contracted it out to a Mr Fowler, who reported in a document which is before us and which is substantial. Mr Fowler's conclusion was, generally speaking, favourable to Ms S and the recommendation was that, with some reservations, nonetheless it was appropriate for her to care for M in the short term.
40. Accordingly, the interim care plan which was written I think on 4th April and which was placed before us indicated that, depending on the outcome of today's hearing, the care plan would be altered, and the interim care plan would be that M should live with her maternal grandmother. In those circumstances, certainly when I read the papers, that was a material shift in the position which would make the position of this court in seeking to allow an appeal and substituting a different order itself very difficult.
41. But even this has not gone particularly smoothly, because, in a way again which I frankly find to be somewhat unsatisfactory, it does not appear that Mr Fowler investigated Ms S's medical record with her general practitioner. It is perfectly clear from the report that Ms S was extremely frank with Mr Fowler about her mental state and the difficulties she had had in the past. I need not read them out. They appear at page H13 in our bundle, paragraph 1.34 and 1.35 of Mr Fowler's report. It appears that Ms S held nothing back. But it equally appears that the local authority at a very late stage wrote to the general practitioner for Ms S. That doctor, Dr Caskey, replied on 10th April 2006 setting out the medical history, which is virtually identical, as I read it, to the history given by Ms S to Mr Fowler, and concluding:

"In view of her quite long and involved history of mental health issues, I would hesitate to recommend that Ms [S] is suitable for the care of [M]. This opinion is based on the evidence which is contained within this lady's medical records. I have not had the opportunity to meet with Ms S on a face-to-face basis in respect of her suitability for child care in the preparation of this report."

Moreover, he had not seen her since 7th November 2005.

42. Faced with this letter, we were told by Mr Jerman that the local authority was reconsidering its position and the care plan was no longer to allow M to live with her maternal grandmother. I expressed my extreme dissatisfaction at the way this particular matter has been handled. It is the local authority's responsibility to produce a proper assessment and a proper report. Whilst it is perfectly legitimate for it to contract the matter out, it is responsible for the result. As I mentioned in the course of argument, I find it extremely difficult to see how this family can have any real confidence in a local authority which constantly shifts its position, particularly having raised their hopes by the potential return of the child to her maternal grandmother.
43. This, however, leaves the difficulty we have where, in my judgment, it always was, namely: can this court, however dissatisfied with the judge's judgment, exercise its own discretion and impose a solution on the case when it itself has not heard evidence? I think one only has to put the matter in that way for the answer to be apparent. However unsatisfactory the judge's judgment, however unsatisfactory the evidence which led to it, however unsatisfactory is his reasoning, it is not in my judgment, in the circumstances of this case, open to this court simply to say we will set aside the judge's order and we will substitute an order of our own. That then leaves the question: what can and should we do?
44. We had a helpful and constructive discussion with counsel this morning. Mr Feehan for Ms M naturally wished to prosecute the appeal and sought to persuade us that we could indeed substitute our own discretion. Mr Jerman, supported by the guardian, took the view that the time was ripe for the matter to be reconsidered on the ground by a judge, as it were, without any further preconditions as to the local authority's stance or the availability of remedies for either party. We caused enquiries to be made of the local county court and we found that there was a hearing fixed for 20th April, which was for directions but which could be widened to allow for a day's hearing at which the local authority's application to renew the interim care order and any cross-application by Ms M could be heard and determined. Equally, if Ms S wished to intervene in the proceedings and obtain party status, there would be an opportunity for her to make that application.
45. Speaking for myself, I have come to the clear view that, whilst, as I say, I regard the judge's making of an interim care order on 26th January as highly unsatisfactory and his failure to consider other options equally unsatisfactory, I do not think it open to this court to allow the appeal and set aside his order in order to substitute an order of our own. The proper course, in my judgment, is for the matter to be remitted now to the county court, for there to be a hearing on evidence of the local authority's renewed application for a care order and for the mother to be free to make any cross-application she wishes. The judge can on that occasion, and it will be soon, 20th April, make an appropriate order.
46. Had the delay been longer, I might have been more hesitant. But as the delay is effectively only little more than a week, and as, whatever we ordered, interim arrangements would take some time to be put in place, particularly over Easter, it seems to me that the best course is that which I have just proposed.
47. Therefore, speaking for myself, having granted permission to appeal, I would as a matter of form dismiss the appeal. That will leave the interim order in place until next Thursday. However, I propose that that dismissal should be accompanied by a direction from this court that the local authority's application for a further renewal of the interim care order, together with any cross-application by the mother, should be listed before Judge De Mille, who is the designated family judge for Peterborough, sitting in the Peterborough County Court on 20th April, with a time estimate of one day.
48. There is I think a limited extent to which we can assist the parties in relation to the evidence which we think may be necessary for the judge to hear. It seems to me that the court will undoubtedly need up-to-date written evidence of M's current medical condition and her daily care requirements. It seems to me that these can be obtained either by the local authority or by the guardian. I hope very much that Dr Shellshear is not on holiday for too long a period over Easter and that material can be obtained. But it is very necessary that it should be obtained, and I would direct the local authority and/or the guardian to produce that up-to-date written evidence.
49. I also take the view that the local authority should prepare an up-to-date interim care plan, with details of the support which could be made available to M and her mother were the judge minded to return M to her mother's day-to-day care under a further interim care order or under an interim residence/interim supervision order. I think Ms S's position needs to be protected, and I would propose that we direct that she be at liberty to make an application to the judge to be joined as a party to the proceedings, this court expressing its opinion that it would be appropriate for her to be in receipt of public funding in order to make that application.
50. I would also propose to direct, if the shorthand writer is able to assist, that she should prepare a transcript of the judgments we give today at public expense as a matter of urgency, so that they can be made available, if necessary uncorrected, to Judge De Mille for the hearing on 20th April.
51. On that basis, speaking for myself, I would dismiss this appeal.
52. LORD JUSTICE WILSON: I agree.
53. LORD JUSTICE PILL: I also agree.

ORDER: Application for permission to appeal granted; appeal dismissed; detailed assessment of the parties' publicly funded costs; the court directs that the shorthand writer present in court produces a transcript of this judgment by close of business tomorrow.

(Order not part of approved judgment)