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Cite as: [2009] EWCA Civ 127

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		Neutral Citation Number: [2009] EWCA Civ 127
		Case No: B4/2008/3139

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(HER HONOUR JUDGE HINDLEY QC)
(LOWER COURT No: BM07C07055)

Royal Courts of Justice
Strand, London, WC2A 2LL

3rd February 2009

B e f o r e :

LORD JUSTICE WILSON
and
LORD JUSTICE LAWRENCE COLLINS
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IN THE MATTER OF N (a Child)

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(DAR Transcript of
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____________________

Mr Andrew Neaves (instructed by Anthony Collins Llp) appeared on behalf of the Applicant, the Second Intervener.
The Respondents did not attend and were not represented.
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HTML VERSION OF JUDGMENT
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Lord Justice Wilson:

Following its refusal by Wall LJ on paper, Mr H makes a renewed application for permission to appeal against certain findings of fact made in the first stage of care proceedings by Her Honour Judge Hindley QC in the Birmingham County Court on 25 November 2008.

The subject of the proceedings was a boy, T, who was born on 17 July 2002 and who is thus six years old. At 2pm on 12 March 2007 he was presented at school, where it was noticed, if not immediately then quite soon, that he was in pain and had apparently suffered serious injuries. He was taken to hospital, where it was ultimately discovered that he had 13 red marks on the left side of his body, from his face down to his leg, and that he had fractures of his right wrist. There was a substantial amount of medical evidence to the effect that the marks on the left side of his body were non-accidental and that the fractures of his right wrist had occurred at the same time, probably when he had put his hand out in order to prevent himself from falling to the floor by reason of the assault on the left side of his body. It was the judge's finding that the assault which had led to the marks on the body, and then to the fractures, was caused not by any deliberate intention to injure T but by excessive chastisement of him. The medical evidence was also clear, namely that the assault had occurred within about 24 hours of his presentation to hospital that afternoon.

T had been living with the mother; and his father plays no part in the history. The mother worked as a cleaner and it was her practice at 6am on days when she worked to take T to the home of the applicant and his wife, where his wife would act informally as a child minder and then, on school days, would take him to school. Thus it was that, subject to one area of the evidence, it was established that, during the 24 hours prior to T's admission to hospital, the only persons having contact with him were the mother from about 2pm on 11 March until 6am on 12 March and then, from 6am until his presentation at school at 2pm, the applicant and his wife.

The care proceedings were brought by Birmingham City Council ("the local authority"). At an early stage -- according to Mr Neaves, at far too early a stage -- the local authority concluded that the evidence which they could present to the court would not enable them to establish that the assault had been perpetrated by any one of those three persons on the balance of probabilities. Thus they resolved at an early stage to contend to the court that the proper finding for the judge to make was what is known as a "Lancashire finding", namely that none of the three persons could be excluded from the pool of possible perpetrators of the assault. In the course of his submissions this afternoon on behalf of the applicant, Mr Neaves has drawn my attention to an unusual feature of the case which -- and it may be my fault -- I had not previously realised: notwithstanding that it was the local authority's contention that the mother could not be excluded from the pool of possible perpetrators of the assault, it was nevertheless their plan, again from an early stage of the proceedings, that T should be rehabilitated with her; and indeed that plan is apparently in course of implementation. The fact that the local authority planned rehabilitation with the mother emboldened Mr Neaves to submit to the judge at an early stage of the fact-finding hearing that an enquiry into the pool of possible perpetrators of the assault was likely to prove irrelevant; but the judge rejected that submission and undertook the fact-finding enquiry. In the end, following a very protracted hearing of which I will say more, the judge made the finding suggested by the local authority.

The finding that the applicant is not excluded from the pool of possible perpetrators of the assault upon T is one of the two findings which the applicant aspires to challenge in this court. Although, therefore, he has not been visited with a finding that he perpetrated the assault, it is clear that a judicial finding that a person is not excluded from the pool of possible perpetrators of an assault can be very serious for that person. It must be extremely difficult for decision-makers to know what weight to attach to a negative finding of that character. It may be that, perhaps in public law proceedings in which a particular decision adverse to such a person is challenged, this court will have to wrestle with the weight which can rationally be attached to such a finding. At all events it is the contention of the applicant that, as a person who has already at one stage embarked upon a course of study to become a nurse and who may well in the future wish to resume that course, the judge's finding that he cannot be excluded from the pool may have very serious adverse consequences for him. Indeed it is apparently the case that, in the light of the judgment, the local authority may be minded to reopen their enquiry into the fitness of the applicant and of his wife to care for their own children.

The other finding which the applicant seeks to challenge is a finding that, irrespective of their responsibility for the perpetration of the assault, he and his wife were, in the hours prior to 2pm on that day, aware that T had suffered a serious injury to his wrist and that both were guilty of neglectful delay in presenting him for medical treatment. Although Mr H is the sole applicant in this proposed appeal, we understand that his wife, who was separately represented at the hearing before the judge, is entirely supportive of it and may wish, were this application granted, to make identical objections about the findings in relation to her as are made by the applicant in relation to himself.

HH Judge Hindley QC is one of the most experienced and respected judges in care proceedings throughout England. It was presumably not her fault that the hearing proceeded over six days in April 2008, over three days in July 2008 and over five days in September 2008, following which she reserved judgment until her hand-down of a written judgment on 25 November 2008. Sadly, however, the pressure of work under which expert care judges in the county courts now labour is all too evident in the judgment then handed down. At first sight, which of course is the approach apt to today's application, it lacks the clarity and organisation of the judgments customarily produced by this judge. There is no attempt at the outset to set the scene; to introduce the parties and to give something of the background of the mother and child over the years prior to 12 March 2007. It is, for example, only in paragraph 34 of the judgment that, as it were by accident, it emerges that the mother is an illegal over-stayer and that T was exhibiting such significant behavioural problems at school as to explain why his admissions to school at that time were only in the afternoon. The judge did not even have time to read through the judgment following its emergence in type. There are over 40 occasions when the words which she used make no sense; but, to be fair, it is, in most cases, not difficult to imagine what she was intending to convey.

One area of the hearing upon which the proposed appeal would particularly focus relates to the person, Mr R, in whose flat the mother and T were staying in the period prior to 12 March 2007. Although it seems that Mr R did not always, or perhaps even regularly, stay at the flat, wherever it was, at the time when the mother and T were staying there, the question of course arose whether he was present there during the night of 11-12 March 2007; and at some stage Mr R became a party to the proceedings. It was the contention of the guardian, at the first part of the hearing, namely in April 2008, that both the mother and Mr R had told her that he had been present at the flat on the morning of 12 March, prior to the mother's removal of T to the home of the applicant and his wife at 6am. Both the mother and Mr R denied that they had so indicated to the guardian. But, at the hearing in April, the judge made an interim ruling, by which she accepted the guardian's evidence that both of them had so indicated. Nevertheless at that time she also acceded to an application by Mr R, possibly by a legal representative on his behalf if he had one, to the effect that he should be discharged from the proceedings. The judge apparently held that there was no plausible evidence which would justify his being found to fall into the pool of possible perpetrators and thus no evidence which justified his continued participation in the proceedings. It is most unfortunate that, in her ultimate judgment, the judge betrayed confusion about when she had made that ruling: for she ascribed it to the hearing in July 2008. Indeed, in a prior paragraph of her judgment, when describing the length and dates of the hearing, she wholly omitted to refer to the six days of hearing in April 2008. Mr Neaves cannot proceed to argue that, seven months later, the judge had entirely forgotten the evidence given to her in April 2008 for she clearly refers in her judgment to some of it. He does, however (and bringing to the suggestion the particular respect that, as a public law practitioner in the Birmingham area, he wishes to afford to the judge's judgment), consider it incumbent upon himself to suggest that the passage of time between April and November 2008, and the interruptions to the hearing, had dimmed the judge's grasp of what had happened at the earlier stages.

The mother had apparently found accommodation at Mr R's flat through the good offices, at any rate indirectly, of her aunt, Mrs J. At the hearing in July 2008 the guardian indicated that, during the intervening three months, she had had a conversation with the allocated social worker in which the latter had said that some person, whom the allocated worker declined to identify to the guardian, had confirmed to her that Mr R had indeed been present at the flat on the morning of 12 March. But the allocated worker told the guardian that she was informing her of this only "off the record". At that time, and afterwards, the guardian appears to have indicated to the allocated worker that in the circumstances it was not appropriate for her to withhold details of the conversation on the basis that it was "off the record"; and, at the hearing in July 2008, it seems to have emerged in court that the allocated worker had given this information to the guardian; that the guardian regarded it as inevitable that the court should be apprised of it; and that the allocated worker's informant had been Mrs J. This unusual development seems to have led the judge to take two courses of action: first, to direct the allocated worker, who for some reason was not present in court, to attend court and, second, to direct the return of Mr R to court in order to answer further questions about his whereabouts that morning. These two directions had very unsatisfactory results. The allocated worker did not attend pursuant to the judge's direction but produced a medical certificate. In her judgment the judge described the certificate as "inadequate to excuse her attendance". Perhaps curiously, however, the judge left that matter there and did not proceed to consider whether there were any significant ramifications for the contents of her judgment in the refusal of the local authority's social worker on the ground to attend court in support of their application. A situation of that character is unknown, at any rate in my experience. Mr Neaves tells us this afternoon that he made further very specific submissions to the effect that the allocated worker's conduct was evasive, dishonest and entirely unacceptable; that he pressed the judge to address those issues and, as he hoped, to uphold his contentions; but that the judge for some reason declined even to address them. As for Mr R, he did attend court pursuant to the direction but refused to answer any questions and, instead, appears from the witness box to have said whatever he wanted to say in the form of a statement. Again the judge, having recited that highly unusual state of affairs, declined to consider, at any rate expressly, whether she should afford any significance to Mr R's conduct beyond saying that it remained her view that he could not properly be left within the pool of possible perpetrators.

From the foot of the proposition that it may be profoundly serious for a person to be left by a judge in care proceedings as being within the pool of possible perpetrators of non-accidental injury, Mr Neaves would wish to press upon this court the further, and allegedly consequential, proposition that such a finding should be made only where the court can be satisfied that the local authority's enquiry into perpetration has been properly conducted and properly presented. The judge indeed accepted Mr Neaves's proposition, based on articles 6 and 8 of the ECHJ, that a finding of this character, albeit negative, should follow only a proper investigation. She held, however, that what she described as "the problematic issue" in relation to what the allocated worker told the guardian and to her subsequent refusal to attend court had been remedied by the rigour of her own, the judge's, investigation into the case. I have said enough to indicate my provisional concerns that the rigour of the judicial investigation may not, on this occasion, have been as well demonstrated as judgments of this judge customarily are.

Notwithstanding all these features, I have, speaking for myself, found it hard to determine whether to grant permission for the appeal to proceed. We must not forget the second finding against Mr H and his wife, arguably of almost equal seriousness to the finding that they remain in the pool of possible perpetrators, namely that they culpably neglected to obtain medical attention for T on that day notwithstanding that they were aware that he had suffered a serious injury. This afternoon, when we taxed Mr Neaves with how, were permission granted, he would set about the task of persuading this court to set those findings aside, he referred to a variety of the evidence given to the judge as to how, both at school and in A&E, T had presented, being evidence with which, so runs Mr Neaves's complaint, the judge did not adequately deal before reaching her adverse finding. Even in relation to his challenge to the judge's finding that the applicant remained in the pool, presumably Mr Neaves could, unless he was to persuade this court that in the circumstances which I have outlined the whole enquiry was unnecessary, at best hope only for a rehearing; and the prospect of another hearing lasting up to two weeks is deeply unattractive.

In the end, however, my concerns about the conduct of these proceedings, set against the seriousness of the findings to the applicant, lead me to propose to my Lord that permission be granted for the appeal to proceed. Indeed in the course of my judgment I have indicated that questions of principle may arise about the circumstances in which the court should resort to a Lancashire finding, as did the judge in this case.

Lord Justice Lawrence Collins:

I agree and have nothing to add.

Order: Application granted