England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
HIS HONOUR JUDGE MASTERMAN
LOWER COURT NO: Honour Judge Masterman
CF07CO5009

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 November 2007

Lord Justice Wilson:

1. This is the judgment of the court, to which both of us have made a substantial contribution. It follows a hearing on 1 November 2007, at the end of which we reserved our judgment but announced the orders which we proposed to make upon its delivery. In this judgment we will reiterate the orders which we hereby make and will give our reasons for making them.

The Issue

2. A man seriously harmed his baby nephew, then aged about 3½ months, by shaking him. The incident may have been an isolated lapse of self-control on the part of a normally caring man, who seems to have been a good parent to his own children. The question that arises on this appeal is whether the judge jumped too far, too soon, in concluding as a result of the incident that the man's own children, one of them as old as six, are likely to suffer significant harm so as to satisfy the threshold criteria under s. 31(2) of the Children Act 1989. The man's appeal to this court and the procedural history of the case highlight points of practice of some importance when a care case is being considered in stages with a split hearing.
3. The case was listed before us as the man's application for permission to appeal on notice to the other parties, with the appeal to follow if permission was granted. The appeal is plainly arguable and we soon concluded that we should grant him permission, which we hereby do.

The Facts

4. The case concerns two sets of parents and two families. So as to avoid a confusing use of the descriptions "mother" and "father", the judge in his judgment, given in private, referred to the parents by their forenames. We will use initials.
5. AP is now aged 27. He is a chef and works on day shifts. By January 2007 he had lived in a settled relationship for about eight years with AS. She is now aged 26 and works as a cleaner on night shifts. They have three living children. C, a girl, was born on 15 November 2000 and so was aged six at the time of the hearing in the court below and is now aged seven. Their second child, D, a boy, tragically died at one week of age in September 2004; his death was entirely due to natural causes and has no relevance to the case. L, a boy, was born on 26 February 2006 and so is now aged 20 months. E-R, a girl, was born on 14 June 2007, i.e. during the course of these proceedings, and so is now aged about six months. We will call these three children collectively the P children. Until the injury to the nephew, there was never any recorded concern about the family of AP and AS or their respective parenting qualities.
6. AS has a sister, JS, who is now aged 20. JS formed a relationship with NC, who is now aged 24. They started to live together in about August 2006. Their son, A, was born on 12 September 2006. So on 1 January 2007 A was 3½ months old and he is now 14 months old.
7. NC and JS asked AP and AS whether they would care for A overnight on New Year's Eve 2006/2007. AP and AS agreed. A was left at the home of AP and AS at about 6.30 p.m. on 31 December. He was apparently well and unharmed. At about 6.45 a.m. on 1 January AP called an ambulance and A was taken to hospital with a number of injuries. During that night AS had spent several hours away at work, so the main responsibility for feeding and caring for A had fallen upon AP; but AS as well as AP had been in contact with him during the night.
8. It is sufficient briefly to summarise A's injuries. He had scratch marks, petechiae or bruising to several different parts of his head, face, neck, arm and chest. He had extensive haemorrhages to the retina of each eye. CT and MRI scans showed fresh collections of subdural fluid in his brain. Experts disagreed as to whether there was also evidence of an underlying, chronic collection of fluid; in other words, whether he had suffered injury only within hours of admission to hospital or also on a previous occasion. Fortunately A did not suffer serious brain injury and he sustained no lasting harm; but it could well have been otherwise.

The Course of the Proceedings

9. AP and AS each strongly denied that they had in any way harmed A. Because of this and of the evidence, on one view, of earlier non-accidental injury, The Vale of Glamorgan Council ("the local authority") were rightly concerned that any of the four adults might have harmed A.
10. On 5 January 2007 the local authority began care proceedings in relation to A. H.H. Judge Masterman conducted a directions hearing, which at that stage concerned A alone, on 21 February 2007. He gave permission to AP and AS to intervene in those proceedings so that they could respectively defend themselves against any allegation that either of them had injured A. He made various directions for the preparation of medical and other evidence. Then he made the following further directions, which are of some relevance to this appeal:

"7. The judge who will be responsible for the PHR and conduct of the threshold and welfare hearing is Judge …."

(In the event, the case remained with Judge Masterman.)

"9. It is directed that this matter do proceed by way of a split hearing with the issues on threshold being considered in the first part of that split hearing….

12. The first part of the split hearing will take place before His Honour Judge …. on 25 June 2007…. with a time estimate of 5 days….

14. The welfare hearing is fixed for hearing on 3 September 2007 before the same judge … with a time estimate of 4 days.

15. The local authority shall serve the evidence upon which they intend to rely in relation to threshold, and a schedule of findings sought by 7 March 2007.

16. The first and second respondents [viz JS and NC] shall serve their response to threshold and they and the interveners [viz AP and AS] the evidence upon which they intend to rely in relation to the threshold hearing by 21 March 2007."

It will be noted that all the references to the first stage of the hearing are to "threshold" and "threshold hearing", although paragraph 15 does make reference to "a schedule of findings sought".

11. On 16 March 2007 the local authority began care proceedings also in relation to C and L (and later E-R immediately after her birth). At that time AP and AS entered into a voluntary agreement with the local authority under which the children should live at the home of AP's parents on an interim basis.
12. There was a further directions hearing on 23 March 2007. The formal order made that day is headed only under the case number in the proceedings concerning A; but it lists the children concerned as being A, C and L (E-R being still unborn).
13. So far as is material, the order made on 23 March 2007 provided as follows:

"1. The proceedings involving the children of AS and AP are consolidated with these proceedings. AP is the third respondent, AS the fourth respondent and the children the fifth respondent….

8. The local authority will file and serve their final draft of the findings sought in respect of the threshold criteria by 29 May 2007.

9. Paragraph 16 of the order of 21 February 2007 is discharged. The first, second, third [viz AP] and fourth [viz AS] respondents shall serve their response to threshold and any evidence upon which they intend to rely by 8 June 2007."

Pausing there, it seems to have been implicit in the order of 23 March 2007 that, in the light of the consolidation, the earlier directions made on 21 February 2007 in relation to A alone would now apply in relation to the P children. The language of paragraphs 8 and 9 of the order of 23 March 2007 meanders between reference to "findings sought", "threshold criteria" and "threshold".

14. A pre-hearing review before Judge Masterman took place on 20 June 2007. Just before that hearing, Miss Helen Mifflin, counsel appearing throughout on behalf of the local authority, prepared a document called "Second draft of the threshold criteria dated 19 June 2007". It is specifically headed with reference only to A. It begins with the words "The court is concerned with the child A born 12 September 2006". From first to last it makes no reference to the P children. Under a heading "The threshold conditions" it states "1. At the date when protective measures were put in place, the child [viz A] had suffered significant harm and was likely to suffer further harm. 2. The risk of harm to which he was exposed was likely to have continued had the child care process not intervened. 3. The likelihood of harm was attributable to the care being given to him not being what it would be reasonable to expect a parent to give to him." The document then sets out a very clear summary of the history and of the proposed medical findings under a heading "The findings of fact sought in support of the threshold conditions". Towards the end of that section, the local authority make plain that their primary assertion is that "Whilst A was in his sole care, AP violently assaulted him and caused the acute head injury…." But the document puts in the alternative that, if the injury was not caused by AP, then it was caused by one of the other adults "and that none of them can be excluded from the 'pool of perpetrators'".
15. The advocates who attended the pre-hearing review on 20 June 2007 included Miss Mifflin for the local authority, Mr Michael Keehan QC for AP, Mrs Jane Crowley QC for AS, and Mr Jonathan Furness QC for the guardian for all four children. At the hearing of this appeal Mrs Crowley very appropriately submitted a brief written document but did not attend, so as to minimise costs, since the position of AS on this appeal entirely supports that of AP. However all the rest of those advocates did attend before us. They told us that it had been agreed at the pre-hearing review that no separate "threshold document" was required in relation to the P children and accordingly none has ever been filed or prepared to this day. That agreement was reflected in paragraph 7 of the order then made, which provided that "The parties are discharged from complying with paragraph 9 of the order of 23.03.07 [see above]." Before us, Miss Mifflin and Mr Furness both strongly asserted that the reason why no separate "threshold document" was required was because all the advocates had agreed or accepted that, if the court was later to find that either AP or AS had been the person who injured A, then the threshold criteria were automatically satisfied in relation to all the P children. The way in which Miss Mifflin put it in her skeleton argument for this appeal was as follows:

"At the PHR the local authority sought to invite the court to consider whether, in the circumstances of this case, a formal threshold document was required in respect of the P children. No respondent required a document and the court directed that the local authority need not file one. The whole case then proceeded on the basis that a finding that AP had caused the injuries to A would satisfy the threshold criteria in respect of the P children. No parties suggested otherwise until after the judgment was distributed

…

The case until [after judgment was given] had been advanced with seemingly a consensus that there was no issue that if AP (or indeed AS) had been found to be the perpetrator then the threshold criteria would be made out in respect of the P children."

But Mr Keehan told us that he did not accept that account. He accepted that it had been agreed that no separate "threshold document" was required; but he did not accept that he, or anyone else on behalf of AP, had agreed that, if it was found that AP had injured A, it would follow that the threshold was satisfied in relation to the P children. For his part, Mr Furness, on behalf of the guardian, acknowledged to us that there was never a formal concession that, if AP was proved to have shaken A, the threshold would be satisfied in relation to the P children. But he said "It was never suggested that, if the shaking was found proved, the threshold were not made out." It thus emerged before us (apparently for the first time) that during the pre-hearing review there was what became described before us as a "misunderstanding" between no less than three Queen's Counsel and a very experienced junior counsel, Miss Mifflin, on the most crucial part of the case insofar as it related to the P children. If advocates of this rank and calibre were confused as to their respective positions, one can only speculate as to the state of the judge's understanding.

16. The first stage of the split hearing took place from 25 to 29 June 2007. Judge Masterman heard oral evidence from doctors, all four adults and others. Each of the four adults strongly denied that he or she had in any way harmed A, although NC did give an account of rocking A too vigorously in his rocking chair on an occasion during November 2006. The judge later devoted a considerable part of his judgment to analysing "the rocking chair incident" but it is not necessary for us to give any fuller description of it. As we understand it, the evidence that week focused entirely upon what injuries A had suffered, who had caused them, and the circumstances in which they had been caused. These were all matters of primary fact. There was no discussion at all in court that week as to "threshold criteria" as a separate or distinct matter; nor is there any reference to threshold criteria, or indeed to the P children at all, in any of the later, very thorough, written closing submissions filed on behalf of each party. The judge reserved his judgment.
17. On 24 July 2007 the judge sent to all parties by e-mail his typed judgment. The document was headed with the case number of the proceedings in relation to A; and the names of the parties in the heading refer only to A and make no mention of the P children.
18. The judgment contains a detailed description and analysis of both the medical and the lay evidence but the passages relevant to the appeal may be limited to the following. The judge recorded that the social worker "… who had carried out core assessments of the parents [viz of A] and of AS and AP… agreed that were it not for the injuries to A she would have had absolutely no reason to intervene in the care he and the other children were receiving." The judge thus commented "So the starting point in this case is that any deliberately inflicted injury to A would appear to be totally out of character in respect of any of the four adults primarily concerned. Each has said in evidence in his or her own way that he or she cannot believe that any of the others would or could have injured A." Later the judge said "AS said that she could not see anyone hurting A. She could not believe AP had lost his patience and done something to A, nor that he would have caused the bruises on A's upper lip. AP had 'never got wound up when the children cry' … AP denied causing A any injury and said that he had never even been close to losing his temper with his own children." The judge also referred in passing to "the implications for the future care of their own child or children of anyone found to be responsible." Apart from those brief passages there is nothing in the judgment which refers to, or directly impacts upon, any of the three P children.
19. In relation to "the rocking chair incident" the judge said "[o]n this evidence NC has demonstrated that at on at least one occasion frustration and stress got the better of him. I do not for one moment suggest that on that occasion in rocking the chair, however excessively, he intended to injure A. However, the fact that he could lose patience once means it could have been more than once."
20. Under a heading "The conclusions to be drawn" the judge found as follows in six paragraphs of his judgment, which we elide:

"[41]I am quite satisfied that A has suffered non-accidental injury. [42] Given the familial background, the surrounding evidence of satisfactory care and the complete absence of any motive for deliberate harm, and despite not knowing exactly what happened, I can also be reasonably satisfied that any such injury was not intentionally inflicted… [48] I have been driven to the conclusion that AP has not told the truth. The only tenable explanation that I can see which is consistent with the facts as I have outlined them is that AP, tired and frustrated probably by his failure to curb A's constant crying, and his vain but over zealous attempts to get A to accept his bottle, finally lost his self-control and shook A, causing the bruising and the encephalopathic episode … as well as the retinal haemorrhages. [49] There is no evidence that AS witnessed this behaviour or even suspected it at the time, although I imagine she has suspected it subsequently. [50] On this finding there is no basis for a finding against NC and in any event no evidence that would persuade me to find that JS was in any way to blame. [51]… I am satisfied that AP injured A on 1 January 2007 but also that there is insufficient evidence to show that A was injured while in the care of either of his parents. They must therefore be excluded from the 'pool'. Nor is the evidence capable of establishing that AS was in any way complicit in what happened to A and she too must be excluded."

The judge's clear conclusion was therefore that AP alone had caused all the harm suffered by A on 1 January 2007. All three of the other adults were completely exonerated of causing it.

21. The final paragraph of the judgment reads as follows:

"The threshold of 'significant harm' in section 31(2) is therefore passed, but without any finding adverse to the parents. The consequences however of the above findings need consideration by the parties before further directions are given. A date will be arranged for that purpose."

With respect to the judge, that paragraph is somewhat opaque; and during the hearing of the appeal different advocates appeared to attach different meanings to it. In the end our conclusion is that the first sentence was intended to relate exclusively to A. The judge was saying, as is plainly the case, that the circumstances of A fell within the first limb of s. 31 (2)(a) of the Act of 1989, namely that at the date of the commencement of the proceedings A was actually suffering significant harm, namely the harm which had been inflicted upon him on 1 January 2007. By adding the phrase " but without any finding adverse to the parents", the judge was – so we conclude – referring only to the parents of A himself and indicating that, in relation to A, the requirement of s. 31(2)(b) had not been established in that the harm suffered by him was not attributable to any lack of care by either of them. The second sentence was a more general recognition that "the consequences" of the findings of fact may have relevance to all the parties to the consolidated proceedings, including AP, AS and their three children, and that all parties needed to give consideration to what those "consequences" might be before the next hearing.

22. The judge did not state anywhere in his judgment whether he found the threshold under s. 31 satisfied in relation to any of the P children. He was later to explain, in paragraph 4 of an addendum judgment to which we will refer, that he "had not been asked to" do so.
23. There was then, unusually, an exchange of e-mails between counsel and the judge; and the exchange was significant. Late on 24 July 2007 itself, Miss Mifflin, on behalf of the local authority, sent an e-mail directly to the judge but of course copied to all other parties and advocates. The gist of it was that the local authority, very responsibly, did not wish to keep A away from his parents "a minute longer than necessary but we want to make sure that we understand your findings as to risk accurately." She then referred by number to those paragraphs of the judgment which dealt with the rocking chair incident. She then asked

"Can you please clarify whether paragraphs 30 – 34 of the judgment constitute a finding of likely risk of significant harm to A from NC and which JS could not be trusted to manage as she has not been open and honest about the [rocking chair incident]? If not, do you find the threshold made out in the proceedings concerning A or only in the proceedings in respect of the P children (as the perpetrator of the NAI to A was AP)?"

24. Arguably implicit in that second question was a suggestion that the judge had already found "the threshold made out" in respect of the P children, although so far the judge had not so stated.
25. By an e-mail dated 26 July 2007 the judge personally replied to all parties as follows:

"Dear All, I apologise if the position is unclear. Paras 30 – 34 were intended to describe and examine the 'rocking' incident in the light of the implications that had been raised about it. My 'conclusions' from para 41 were then intended to make clear that I considered this incident did not give rise to any injury or significant harm and on the evidence is to viewed as a regrettable lapse by NC, but not one that gives rise to a likehood of significant harm. I did not therefore find the threshold passed in respect of A."

The judge then continued with these words:

"Sadly, it is passed (obviously) in respect of the P children. For the avoidance of doubt, I agree that the consequence is that (a) A should be returned to his parents and (b) because of my findings in respect of AS, the present arrangements in respect of the P children should continue until directions can be given."

The e-mail then ended. We are unclear whether the reference to "my findings in respect of AS" was a slip and the judge intended to refer to his findings in respect of AP; or whether he was indeed deliberately referring to AS and to his finding that she could not accept or believe that AP could have harmed A. However, nothing turns on this minor ambiguity.owever, nothing turns on this minor ambiguaty

26. There was of course no suggestion that any of the three P children themselves had ever suffered any harm at all. It thus appears that by that e-mail, and in a single sentence, the judge recorded a finding that the threshold criteria that a child is likely to suffer significant harm was "passed" in relation to each of the three P children. The sentence contains no reasoning other than the proposition that it is "obvious". In fairness to the judge, it must be stressed, first, that he may have been lulled into that approach by the implication in the e-mail under reply from Miss Mifflin to which we have referred. Secondly, he may have been labouring under the same understanding or "misunderstanding" which Miss Mifflin and Mr Furness had gained at the pre-hearing review.
27. There was then a further hearing in court on 3 August 2007 at which the judge formally handed down his judgment and gave directions for the future conduct of the case in relation to the three P children. It was understood that the hearing would be short since the judge was then engaged on a long trial. As they knew time would be short, the advocates for all parties had filed position statements or skeleton arguments in light of the judgment. It is relevant to record, first, the reaction of each of AP and AS to the findings in the circulated judgment. In his position statement Mr Keehan wrote "with all respect to the court, AP does not accept the finding that he injured A on the evening of 31.12.06/early morning of 01.01.07." Mrs Crowley wrote "AS has considered the judgment of the court. She acknowledges the finding made against her partner, AP, but finds it very difficult to accept that he is the perpetrator of the harm suffered by A. She knows him to be a good and caring partner and parent with whom she has had a happy and successful relationship for over 8 years, and her personal experience of him is at odds with the judgment. It is her wish to resume family life with her partner AP and their children at the earliest opportunity." The stance of AS at this stage was in some contrast with her statement dated 20 June 2007 in which she had said "I am anxious to know who caused these injuries to A as I would not want that person to come into contact with my children either. I want to live with AP and my children as a family again as soon as possible." The position statements of both Mr Keehan and Mrs Crowley proceeded plainly to put in issue whether, even on the facts found in relation to AP's responsibility for the injuries to A, the threshold criteria were satisfied in relation to any of the P children.
28. The position statement of Miss Mifflin in response expressed some surprise. She referred to the pre-hearing review and said "No party sought a draft threshold and no one has raised the issue since. Nothing appeared in written submissions to alert the local authority that any issue was to be taken. It therefore came as some surprise that there appeared to be some criticism of the local authority for not doing so. The local authority simply say that until there is an understanding as to what went wrong that night and what were the triggers that led to AP behaving as he did, there must be likely risk to all three children." Miss Mifflin then further developed why, in her submission, the threshold criteria were satisfied in relation to all three P children. She made plain that the aim of the local authority was to re-unite all three children with their parents as a family. She made various suggestions as to how that might be achieved; and she asked the court to make an interim care order in the light in particular of the fact that there was no acceptance of the findings on the part of AP, nor perhaps of AS. The local authority proposed that Mr Colin Luger, using the well known "Resolutions" model, might be able to assist. The position statement of Mr Furness began "The guardian respectfully submits that the judgment is clear that the threshold has been crossed in respect of the P children on the basis that the actions of AP towards A indicate that there is the likelihood he will cause significant harm to his own children. The whole case proceeded on the basis that a finding that AP had caused the injuries to A would satisfy the threshold criteria in respect of the P children. The final submissions put forward on behalf of AP did not suggest otherwise." Mr Furness made plain, however, that the guardian also supported "the local authority proposals for assessment with a view to rehabilitation."
29. The position statement placed before the judge on 3 August 2007 by Mr Keehan, to which we have referred, was, as one would expect of him, careful and thorough. He put in issue whether the threshold criteria were satisfied at all in light of the findings. But rather unfortunately, in our view, quite a large part of the document focused (as does his skeleton argument before us) on the conclusion that the threshold criteria had not been found satisfied in relation to A despite NC's behaviour towards A in the course of the rocking chair incident. In effect Mr Keehan was arguing that, if NC's behaviour in the course of the rocking chair incident did not give rise to a likelihood of significant harm to A at his hands, then the findings of how AP had harmed A on 1 January should not give rise to such a finding in relation to the P children. Throughout the document there was a cross-referencing to, and an inter-weaving with, NC and the rocking chair incident. With respect to Mr Keehan, the argument was in our view little more than forensic and in truth irrelevant. There was the factual nexus that the same child, A, was involved; but, beyond that, the submission was little different from reminding a judge that in another, different, case in the previous week, he had not found the threshold criteria satisfied in relation to specified facts. But Mr Keehan did of course also make the positive points that there had been no previous or other cause for concern about the parenting qualities of AP, that the infliction of the injuries had been totally out of character for AP and not intentional, and that it had been but a momentary, uncharacteristic and regrettable lapse.
30. As we understand it, the hearing on 3 August 2007 lasted little more than one hour. The judge indicated that he had read the position statements. He heard relatively brief oral argument. He stated that he had not changed his mind that the threshold criteria were satisfied in relation to the P children and, when requested, he agreed to put his reasons into an amended or addendum judgment. AP and AS, supported by the guardian, opposed the making of interim care orders on the basis that they would continue to act co-operatively with the local authority; and no interim care orders were made. The judge gave directions for "…Colin Luger to undertake a viability assessment as to whether the Resolutions model is appropriate for the family …."; and directions for "... a psychological assessment of AP and AS and to address any issues arising from the dynamics of their relationship ….". The length of the hearing fixed by the order of 21 February to take place on 3 September was reduced from four days to one hour; and a final hearing date has now been fixed for four days starting on 28 April 2008. As we understand it, the initial "viability assessment" of Colin Luger was sufficiently positive that he is now undertaking a programme of work; and the psychological assessments have been completed.
31. On about 7 August 2007 the judge circulated his "addendum judgment". At paragraph 3 he said that "The threshold criteria document in the proceedings concerning A required the court to make findings as to how A sustained certain injuries….No specific finding was required by the document in respect of the P children but it was understood that any finding which implicated AS or AP was bound to have repercussions for their own children …." What the judge meant by "bound to have repercussions" is not entirely clear, but the judge does not state that it had been understood that any finding which implicated AS or AP necessarily entailed that the threshold criteria were satisfied in relation to their own children.
32. However at paragraph 4 he continued "At the hearing [on 3 August] I confirmed what I had not made explicit in the draft judgment (because I had not been asked to), namely that in my view the findings against AP in respect of his own nephew led to the conclusion that his own children were sufficiently at risk, should similar circumstances arise, to be likely to suffer significant harm attributable to his care of them." The phrase "confirmed what I had not made explicit" perhaps reveals that the judge had indeed reached a decision in his own mind on the threshold issue even at the time of preparing his fact-finding judgment in relation to A.
33. At paragraph 5 the judge then briefly addressed Mr Keehan's arguments. There are two limbs to the paragraph. First, the judge said "The basis [of Mr Keehan's argument] is that they are not at risk from a devoted father. One answer to that might be that A was not thought to be at risk from a devoted uncle." With due respect to the judge, that single and slightly glib sentence in what, after all, was a further, reserved, judgment on the issue does not engage with the many positive points which Mr Keehan had developed as to why they were not at risk from their father. In fairness to the judge, however, the seeds of the judge's own reasoning lay in the overall thrust of Mr Keehan's position statement which, as we have explained, irrelevantly focused on a comparison between what AP had done to A and what NC had done in the course of the rocking chair incident. Second, the judge said:

"Further, Mr Keehan submitted that NC had been found to have lost patience, become frustrated with his son A and handled him inappropriately on one occasion and that there was no real distinction between this and AP's one 'regrettable lapse'. I have already indicated in court that I am unable to accept that argument. In my judgment there is a vital difference between the actions of a parent who handles a child roughly and inappropriately in a moment of frustration, but causes no significant injury, and the parent who crosses an invisible line of which every parent is aware and causes significant injury. The former retains a degree of self-control; the latter abandons it. It is that distinction which has to be drawn in this case and which in my judgment gives rise to the risk of future harm."

When the judge said "It is that distinction which has to be drawn in this case….", he was making the "distinction" only because of Mr Keehan's argument that there was no distinction between the actions of NC and of AP. But Mr Keehan argues to us that the judge was wrong to draw a distinction about future risk which turns more on the severity of the injury suffered than on the behaviour of the person causing it. Particularly in the case of internal head injury to babies, he submits such to be a dangerous basis of distinction. In their skeleton argument before us Mr Keehan and Mr Miller submit that:

"…. In assessing the risk of future harm it is the actions of the parent or carer which primarily gives rise to a risk of harm rather than whether those acts resulted in injury or harm to the child. Where a child is shaken or vigorously rocked, injury may or may not result: the action cannot be judged to a nicety as to whether injury will result. The fact that A suffered serious injuries in the latter episode (which is not under estimated) does not materially increase or diminish the risk of either of them [viz AP and NC] suffering a loss of control in the future. Accordingly the assessment of future risk of harm depends on the circumstances of the incident and the act done: not on whether injury resulted."

The Legal Framework

34. Section 31(2) of the Children Act 1989 provides that:-

"A court may only make a care 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; …"

35. Although they are trite law, it is relevant to this case to stress certain points. First, s. 31 is specific to "the child concerned". Where more than one child is concerned, it is necessary to consider each child separately even if in many cases a risk to one is a risk to all. Second, s. 31(2)(a) provides two different threshold bases for a care order. One basis is proof that harm has actually been suffered. The other basis is future risk. Whilst assessment of future risk must be underpinned by proof of facts, it requires ultimately an assessment or judgment to be made after weighing all relevant factors.
36. The approach to "likely to suffer significant harm" and to the assessment of risk remain authoritatively described by Lord Nicholls of Birkenhead in In re H and others (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563. At p.585F Lord Nicholls said:

"…. in section 31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case."

At p.592G he said:

"…. Parliament decided that the threshold for a care order should be that the child is suffering significant harm, or there is a real possibility that he will do so. In the latter regard the threshold is comparatively low …."

At p.591E-G he referred to the width of the range of facts which may be relevant to the threshold conditions and continued:

"The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults…. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."

Application to this Case and the Outcome of this Appeal

37. None of the P children has ever suffered any harm; and, as all concerned, including the judge, fully appreciated, the threshold in their case required to be satisfied under the second limb of paragraph (a) alone: risk, or likelihood, of future significant harm. We consider that the judge was not justified in finding as he did, at the time when he did, and for such reasons as he gave, that each of the P children, considered separately but also as a family unit, is likely to suffer significant harm or that there is "a real possibility that cannot sensibly be ignored" that any one of them will do so.
38. The judge himself said in his addendum judgment that he had not been asked to make a finding whether the threshold criteria were satisfied in relation to the P children in his first, fact-finding judgment. We also observe that, by the stage of the first judgment, he had not heard any argument on the point; and there was no document of any kind formulating or analysing how any particular conclusion on the facts in relation to A would or might justify a conclusion that any of the P children was likely to suffer significant harm.
39. Perhaps lulled (unwittingly) by the implication in the e-mail from Miss Mifflin, and/or because of his own state of understanding or misunderstanding after the pre-hearing review, the judge jumped to the single sentence conclusion in his e-mail on 26 July that the threshold "is passed (obviously) in respect of the P children." With respect to the judge, we are unable to accept that it is so obvious as not to require explanation or reasoning.
40. We readily accept that there are many cases in which, in light of what has been proved to have happened to child X, it is indeed "obvious" that child Y is likely to suffer significant harm. That cannot, in our view, be said in this case; and fuller analysis was, and is, required of a number of relevant factors along the lines indicated by Lord Nicholls in the passage quoted at the end of [36] above. For example, A is not AP's own child. A was a baby who was proving very troublesome to feed. E-R is still a baby and L could until recently still have been described as a baby; but C is of school age. There had never been any previous concerns about the parenting of the P children. The incident appears to have been isolated and out of character. On the other hand at the fact-finding hearing AP had denied responsibility and must have lied to the court; and AS did not accept that he could have been responsible. Indeed, perhaps importantly, such appears to remain their respective stances even following judgment. In our view this case cries out for psychological assessments of AP and AS and of "any issues arising from the dynamics of their relationship", of a kind which were not available on 3 August and indeed were then ordered. It is at least strongly arguable that such assessments are relevant not only to the outcome or so-called "welfare" stage but also to the threshold decision whether any of the P children is likely to suffer significant harm.
41. At the hearing on 3 August the judge considered Mr Keehan's written position statement and gave him an opportunity to make oral submissions. But in our view the addendum judgment still gives no consideration to, or analysis of, the many relevant factors in this case. The sentence "One answer to that might be that A was not thought to be at risk from a devoted uncle" is scarcely a reason at all. The remainder of paragraph 5 of the addendum judgment mistakenly (if understandably, in light of Mr Keehan's argument) focuses on the distinction between NC and AP and on the severity of the previous injury as the test of the risk of future harm. We accept that the nature and severity of the previous injury may be relevant; but we agree with Mr Keehan that in principle the manner of its perpetration carries greater relevance to future risk.
42. It is for these reasons that we concluded that the judge's determination that each of the P children is likely to suffer significant harm could not stand, whether that determination be regarded as contained in his e-mail of 26 July or in his addendum judgment or both. So we hereby allow the appeal and set the determination aside.
43. Mr Keehan has boldly asked us to go further and to substitute a positive determination that the threshold criteria are not satisfied in relation to all or any of the P children. It will be clear from what we have already said that we concluded that it would be quite wrong for us to go that far. The arguments for saying that the criteria are indeed satisfied in relation to all, two or one of the children deserve close scrutiny. We have not heard any of the oral evidence. Compared with Judge Masterman, we are ill-equipped to make a balanced overall assessment. We thus concluded that we should remit to him the task of redetermining the question whether the threshold criteria are satisfied. No one has suggested that he will not perform that task thoroughly and with an open mind, informed by such guidance as this judgment may afford to him.
44. The next question that arises is: at what stage should the judge make the redetermination? One may observe in general terms that, if the threshold is not crossed, the sooner that such is recognised by the court, with the consequential ending of the proceedings, the better. But consideration always has to be given to the stage at which the crucial enquiry is likely to be most satisfactorily undertaken. In the present case, should it now be deferred to the outcome hearing, fixed to start on 28 April 2008, and be dealt with as the first stage of the decision-making process at that hearing (albeit not necessarily as a preliminary issue)? Or should it be considered at an earlier, intermediate hearing? Mr Keehan strongly contended for the former approach; Miss Mifflin and Mr Furness for the latter. Essentially the difference between them is this. Mr Keehan said that the work which Mr Luger is in the course of conducting may inform the threshold decision itself, so that the decision should remain postponed until his work has been completed and, indeed, any other relevant assessments (not least, by the guardian) have been made. Miss Mifflin and Mr Furness, however, say that the essence of the "Resolutions" model is to start from a judicial determination that there is indeed a risk to a child and then to work with parents who still continue to deny the existence of that risk, with a view to finding, if possible, a way of nevertheless keeping the child safe if permitted to live – or to return to live – with them. Miss Mifflin argued that a judicial risk assessment was the necessary starting-point of the work of Mr Luger, that he was in effect a "manager" of assessed risk and that he could not be expected to assess the risk himself. In that regard we wonder whether the existing "risk assessment" made by the judge is so perfunctory and unexplained that it could not be of much help to Mr Luger. It is little more than an assertion of what the judge from the outset appears to have regarded as obvious.
45. We have not found these rival arguments easy to weigh. We do not have any detailed information about Mr Luger, his techniques or the current stage of his work. We do not know what his reaction will be to learning that the judge's abrupt assertion that the threshold criteria were satisfied has been set aside by this court. He may say that he cannot for the time being continue with his work. That would surprise us. He may say that it makes no real difference. The material with which he needs to confront AP and AS – and perhaps the wider family – is not so much the judge's assertion of the satisfaction of the threshold criteria as his findings of fact in relation to AP's assault upon A, and the possible implications of those findings for the safety of the P children.
46. For those reasons we concluded that we could not properly decide whether the issue as to the satisfaction or otherwise of the threshold criteria should be decided at an intermediate hearing or at the outcome hearing next April. In our view this, too, must be decided by Judge Masterman; and we thus direct that the case be listed for an early directions hearing before him (with sufficient time allowed for a full and thoughtful hearing) at which he and the parties take stock of our decision and judgment; at which they submit what further enquiries, evidence or assessments are required; and at which he decides the stage at which the threshold issue should be redetermined.

Points of Practice

47. At the outset of this judgment we observed that the case highlights points of practice of some importance. To these we now turn.
48. This case had the relatively unusual feature that two sets of proceedings concerning children in two families were consolidated, at a time when in one set of proceedings key directions had already been given. On any view the suitability of those directions to the other set of proceedings was not fully considered at the time of consolidation. But what in particular emerges from the above account of the course of the proceedings is that no, or no sufficient, consideration was given in the assembly of the case for the first stage of the hearing to (i) the basis upon which the local authority contended that the threshold criteria were or (depending on the judge's findings as to responsibility for the injuries to A) might be satisfied in relation to each of the P children; (ii) the basis upon which the parents challenged or (depending on the judge's findings) might challenge the local authority's contention; and (iii) the stage of the proceedings at which that issue should be determined. As a result, the fateful "misunderstanding" arose.
49. Formulation of the issue as to satisfaction of the threshold criteria and its determination are very important matters. Section 31(2) is the two-tiered barrier carefully erected by Parliament against intervention by the State into the private lives of families.
50. In the case of an injured child, such as A, the first tier of that barrier, namely that set by s. 31(2)(a), may automatically be satisfied upon proof of the primary facts. But in the case of any child who has not himself been harmed, such as siblings and in this case all the P children, an assessment of future risk is required. In relation to such a child, there are, accordingly, at least three, not two, stages of any enquiry, whether or not it proceeds by way of a single or a split hearing. First, an establishment of the primary facts. Second, an assessment as to whether the threshold criteria are satisfied. Third, a resolution of the "welfare" issues (which will also include an assessment of risk: see the observations of Hale LJ in Re G (Care Proceedings: Split Trials) [2001] 1 FLR 872 at [42]) and a determination of the outcome. Particularly when a split hearing is ordered, it is therefore important for everyone to be clear at what point the threshold assessment will be made. Depending on the circumstances of the case, it may well be appropriate for it to be made as an ingredient of the fact-finding judgment; or at a point immediately after, and in the light of, that judgment. But, on the other hand, it may be appropriate to defer it so that it becomes the first step at the final, outcome hearing; or possibly becomes a discrete step at an intermediate hearing. What is essential is that all parties and the court should discuss, record, and recognise the point at which it will be made.
51. In any case where future risk is relied upon, it is, furthermore, very important that a document should analyse and describe (if appropriate, separately in relation to each child, if more than one) how that risk is alleged to arise from the alleged primary facts. Undoubtedly in some cases the reasons may indeed be "obvious" and may be shortly stated; and we do not suggest that an elaborate document is necessarily required. The document may form part of the document which also describes the alleged primary facts, but it should at any rate be a separate and clearly headed part of it. There must be clarity in the distinction between what are the contentions of fact and the contentions of risk. It may be agreed – or perhaps accepted by the court – that the document as to future risk cannot practicably be compiled until after the court's determination of the primary facts. If so, there can be no question of the court's inclusion of its appraisal of risk in its fact-finding judgment.
52. This is why in this case, and perhaps in many cases, the indiscriminate use of labels like "threshold document" and "threshold hearing" may lead to misunderstanding.
53. These points are obvious and are far from novel. For instance, in Re O and N (Care: Preliminary Hearing) [2002] EWCA Civ 1271, [2002] 2 FLR 1167, Ward LJ, giving the judgment of this court, said, at [15]:

"Assuming that a preliminary hearing was necessary, then it ought to be properly presented to the courts. It is the responsibility of solicitors and counsel for all parties to agree, or failing agreement invite the court to rule on, the issues which have to be resolved. That matter should have been ventilated at an early directions appointment attended wherever possible by those who will conduct the hearing. The question[s] should then be formulated and drawn up in an order. That order should direct a preliminary hearing of those issues – or of the questions of fact which have to be resolved. The questions should be formulated in such a way as will permit the court on that preliminary hearing to answer yea or nay wherever possible or otherwise with the minimum narrative. At the preliminary hearing the order should be drawn which then records those answers."

54. The recently reported judgment of Wall LJ in Re A (Children: Split Hearing) [2006] EWCA Civ 714, [2007] 1 FLR 905, makes plain at [18] and [24] that in a split hearing case the purpose of the first hearing may be solely to find facts, and that the issue as to the satisfaction of the threshold criteria may be timetabled for the final, outcome hearing. Meantime, unless the court has positively concluded at the first hearing that the s. 31(2) criteria are not satisfied, the court may make interim care orders if the lesser test under s. 38 is satisfied – see [6] and [24].
55. In Re A Wall LJ continued:

"[33] The second point of importance is that where the court is contemplating a split hearing in a case involving children it is in my view essential that the issues to be resolved in the first limb of the hearing are clearly defined and that the consequences of any such findings are fully understood by the parties. Thus if the court is dealing with a single-issue case in which the facts found will determine the threshold criteria under s 31(2) of the 1989 Act, the directions which are given by the court and which set up the first limb of that hearing must: (1) identify precisely the purpose of the hearing, namely to decide whether or not the threshold criteria are established; and (2) identify with as much precision as possible the facts upon which the local authority relies and which it asserts will, if proved, establish the criteria.

[34] Alternatively, if the purpose of the first limb, as here, is not to decide whether or not the threshold criteria are satisfied, but to resolve an issue of fact which will affect the manner in which subsequent assessments of the parties are to be made, the issues which the court is being asked to resolve once again and the facts which it is being invited to find must, in my judgment, be clearly spelled out. In either case, this is best done by an order of the court which sets up the first limb of the hearing, and that order should identify clearly the issues which are to be addressed.

[35] Equally, it seems to me that once the first limb of the hearing has been completed, and the judge has delivered judgment, it would usually be sensible for there to be a short discussion in court between counsel and the judge to clarify the consequences of any findings which the judge has made. In a genuinely single issue case, for example where a serious injury or an allegation of sexual abuse is the only factor which would enable the threshold to be crossed, a finding that the allegations have not been established to the requisite standard will mean that the threshold had not been established and the proceedings would have to be dismissed.

[36] If on the other hand the allegations are proved and the threshold criteria are established, the court must move on to assessment. Thus where the purpose of the first limb of a split hearing is not to determine threshold criteria but to give the opportunity of findings of fact to be made which will inform the consequential assessment of the parties and the conduct of the case, it is, in my view, essential when the judge has made or declined to make relevant findings, that the state of the case consequential on the judge's judgment on the first limb is clearly understood by everybody and preferably recorded in an order of the court."

56. In the light of the above authorities and the lessons to be learnt from the present case, we suggest that:

(a) When a split hearing is ordered, express consideration should be given by all parties and the court to whether satisfaction of the threshold criteria will be considered and determined as part of the first, the final or an intermediate hearing. Orders for directions should identify and describe with clarity what is to be the subject of evidence, argument and decision at each future hearing.

(b) Labels such as "threshold hearing" and "threshold document" must be used with great care and in particular must not be confused with "fact-finding hearing" and "schedule of proposed findings of fact".

(c) In any case in which the threshold criteria are alleged to be satisfied on the basis of future risk rather than of past harm to a child, there must be a clear written analysis and description by the local authority of the facts alleged to give rise to that future risk in relation to each child, to which all other parties have the opportunity to make written response.

(d) Where there is a split hearing, express consideration should be given to whether the documents referred to at (c) above should be prepared before, or only after and in the light of, the determination of the fact-finding hearing and, if appropriate, further assessments.

(e) Where, as in this case, proceedings are consolidated or other children are added as subjects of existing proceedings, great care should be taken to scrutinise earlier orders for their suitability to the consolidated or enlarged proceedings.