COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWANSEA COUNTY COURT
HHJ DAFYDD HUGHES
LOWER COURT NOS: SA09C00421, SA10Z00446, 7 and 8
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE WILSON
| D Mc G
|- and -
|Neath Port Talbot County Borough Council
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|C, H and S, Children, by their Children's Guardian
||Third, Fourth and Fifth Respondents
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Miss Alison Ball QC (instructed by West Glamorgan Joint Child Care Legal Service) appeared for the First Respondent.
The Second Respondent did not appear.
Mr Mark Allen (instructed by Cameron James Hussell & Howe, Port Talbot) appeared for the Third, Fourth and Fifth Respondents.
Hearing date: 12 July 2010
Crown Copyright ©
Lord Justice Wilson:
"In a case where the care plan leads to adoption the full expression of the terms of Article 8 must be explicit in judgment …"
It is clear that Wall LJ, as he then was, agreed, at , with that apparent instruction of Baron J, albeit that, in giving a short final judgment, Smith LJ did not specifically associate herself with it. It goes without saying that, in making placement orders, a judge must not infringe rights under Article 8 and that in some cases the safest means of avoiding infringement may be for him expressly to consider the rights and the circumstances in which interference with them is permissible. We are also extremely conscious of the desirability that this court should speak with one voice, even beyond the realms in which the doctrine of binding precedent so dictates. That said, it is, of course, unusual for a judge to be required to include any particular set of words in his judgment. The more usual approach is to assume, unless he has demonstrated to the contrary, that the judge knew how to perform his functions and what matters to take into account: Piglowska v. Piglowski  1 WLR 1360, at 1372G, per Lord Hoffmann. Perhaps when the next appeal against a placement order arrives before us upon the basis of a complaint that there was no express reference to Article 8, we will have to consider whether, when considered in context, the instruction of this court in EH is as absolutist as it at first appears.
"… her opinion, bearing in mind the [perianal] extension of the scar, was that it was diagnostic of penetration. That is something that was not observed, as I understand it, by Dr Barnes or Dr Watkeys, and that is something which Dr Payne found to be significant, and probably crucial so far as her diagnosis was concerned. For that reason, I prefer the evidence of Dr Payne …"
The words of the judge, namely "as I understand it", betray a degree of hesitation on his part. It was unfortunate that he did not, so we are told, check his understanding with counsel when they made their final submissions to him. For it is common ground that unfortunately his understanding was entirely mistaken. We have been shown Dr Payne's addendum report in which, in reference to Dr Watkeys' hand-written notes of her examination, she conceded that Dr Watkeys had recorded the scar as extending to the perianal skin. In that the alleged failure of Dr Watkeys and Dr Barnes to observe the extension of the scar was cited by the judge as the sole reason for his rejection of their evidence, the judge's finding that H had suffered sexual abuse cannot stand.
(a) to grant the mother permission to appeal;
(b) to allow the appeal;
(c) to set aside the judge's care and placement orders;
(d) to set aside the finding that H had been sexually abused;
(e) to make interim care orders in relation to the girls for the maximum period of 28 days;
(f) to transfer the proceedings to the High Court, Family Division, Cardiff District Registry;
(g) to direct that Mr Justice Roderic Wood, as the Family Division Liaison Judge for Wales, should, in London prior to the end of this current Trinity Term, hold a directions hearing, estimate one hour, at which he should be invited to give specific directions for a specialist assessment of the mother's parenting capacity (and thus to determine any particular controversy in relation thereto) and to set a timetable for the further despatch of the proceedings; and
(h) to make no order as to costs between the parties, save for a public funding detailed assessment of the costs of the mother and of the girls by their guardian.