Case No: B4/2011/0845
Neutral Citation Number: [2011] EWCA Civ 1705
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM KINGSTON UPON HULL DISTRICT REGISTRY
(HIS HONOUR JUDGE DOWSE)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Wednesday 16 November 2011
Before:
LORD JUSTICE THORPE
LORD JUSTICE PITCHFORD
LORD JUSTICE MCFARLANE

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IN THE MATTER OF L (Children)

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(DAR Transcript of
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Mr S Hirst (instructed by Sandersons Solicitors) appeared on behalf of the Appellant Mother.
Mr S Cobb QC and Ms T Lee appeared on behalf of the First Respondent.
Ms J Geddes appeared on behalf of the Second Respondent.
Mr G Button appeared on behalf of the Third Respondent.

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Judgment

Lord Justice Thorpe:
1.	There have been lengthy and complex proceedings in the Hull Court, proceeding as a High Court case, the major hearing tried by HHJ Dowse (who I think is the designated family judge in Hull); he was sitting as a section 9 judge.  The case had dramatic features and it all concerned the six children born to the mother, who is the appellant in this court.  She commenced a relationship a decade ago with a Mr Finley and their first child was born in 2001, shortly before they commenced co-habitation.  Their second child, [L], was born on 15 March 2003 and died at ten months of age.  A post mortem and subsequent inquest failed to ascertain any cause of death.  Their third child, [E], was born after their separation and preceded the commencement of the mother's relationship with Mr Lamb.  To that relationship the mother's fourth child was born n 2006 and in August 2007 came the dramatic death of [E], then roughly three years of age.  The fifth child, [S], was born in April 2008 and shortly thereafter the mother and Mr Lamb commenced co-habitation.  

2.	On 4 August 2008 a social worker gained access to the home and made a report which led to the arrest of the mother and Mr Lamb and the removal of the children into care.  Obviously the local authority had reached a preliminary conclusion that the two child deaths were not accidental or coincidental and that the other children were at risk.  The care proceedings commenced on 28 August 2008 and I will detail those proceedings in due course.  I conclude by recording that in the summer of 2009 three of the children were placed with Mr Lamb on the basis that he would provide care for them separately from their mother and protected from any risk of harm at the mother's hands.  The final child was born on 28 October 2010 and that is essentially a postscript, although separate care proceedings were then initiated in relation to her and joined with the earlier proceedings in relation to the earlier born children.

3.	Within the care proceedings the local authority's primary case was that the deaths of both [L] and [E] resulted from induced illness and initially the investigation concerned both parents – both the mother and Mr Lamb – although as they progressed it became apparent that the local authority's case was truly against the mother alone.  The local authority also mounted a subsidiary case in relation to neglect, failure to collaborate with professionals and causing emotional harm.  

4.	Turning now to the course of the proceedings, the case was transferred to the High Court in September 2008 and was listed for a preliminary fact-finding hearing which was to commence in March 2009 with a four-week timetable.  The case was released to HHJ Dowse as a section 9 judge in October 2008 but that fact-finding hearing in March was vacated because it was perceived that the time estimate of four weeks was inadequate and the expert evidence was not ready.  The re-listing was for 5 October 2009 with an enlarged time estimate of seven weeks.  That hearing of 5 October 2009 commenced but during its course a report was received from Dr Newbury-Ecob, a consultant geneticist, to the effect that [L] and [E] had carried a KCNH2 gene variant.  Accordingly it was adjourned to re-commence on 25 January 2010 with a time estimate of three weeks to allow a full report to be prepared by Dr Newbury-Ecob and to allow the other experts to consider and report on her opinion.  The fact-finding hearing in January 2010 was again vacated and re-listed for April 2010 to allow for further genetic testing of family members, for the court experts to express their views and to enable certain of the experts to give fresh evidence. In February leave was given for Professor Peter Fleming to be brought in on a limited basis at the request of the consultant paediatrician who had already been instructed, Dr Robinson.  The resumption of the fact-finding hearing came on 26 April but on 24 May it was adjourned part heard to allow for Professor Fleming's report to come in and for other experts to give evidence in relation to his opinion.  This marathon concluded on 16 July 2010 and judgment was inevitably reserved, being handed down on 31 January 2011.

5.	I want to emphasise that no wonder the handed down judgment was reserved for a comparatively long period because when the judgment came it extended to 189 pages and 499 paragraphs.  None of that is wasted material.  It is a mark of the extraordinary complexity of the medical and scientific evidence and the extent of the hearing which was no less than 63 days in court.  At the hand down the mother's counsel, having failed in an application to HHJ Dowse for permission to appeal, obtained an extension of 35 days for filing of an appellant's notice.  That was received in this court on 31 March and considered on paper by Sir Mark Potter on 24 May, when he provisionally refused permission.

6.	There was then an oral renewal, impeccably prepared by Mr Godfrey and Mr Hirst for the appellant, and considered by Black LJ on 11 August.  She delivered a careful judgment in which she explains succinctly the points advanced by Mr Godfrey and Mr Hirst that had made an impression upon her and caused her to grant the permission.  She concluded by saying: 
"I should stress that this is no more than permission to appeal and is not intended to indicate in any way how matters might come out once the full court considers the matter."
7.	Black LJ was, of course, considering only the written and oral submissions advanced by Mr Godfrey and Mr Hirst.  We now have the advantage of submissions from both fathers and from the guardian and from the local authority.  Therefore, as we sit today, the guardian and Mr Finley adopt a position of neutrality; Ms Geddes for Mr Lamb supports the appellant and Mr Stephen Cobb QC, leading Ms Lee, presents the respondent's contrary case on behalf of the local authority.

8.	The submissions advanced on behalf of the mother are three in number.  Firstly, that the judge was plainly wrong to prefer the evidence of Dr Martin to that of Dr Robinson and Professor Fleming.  Secondly, in preferring the evidence of Dr Martin, he wrongly elevated its significance to decisive character; it was not and should not have been regarded by the judge as the end of the case, determinative of the issue in the local authority's favour.  The third submission is that the judge effectively decided the case in an unacceptable fashion, looking in detail at the medical evidence, concluding against the mother, and then proceeding to canvass or to survey a number of collateral issues.  That was, essentially, to put the cart before the horse.  In her submission Ms Geddes supports the mother's case but develops independently the submission that the judge really oversimplified in identifying a route to solution as a choice between two alternatives, either cardiac arrest or induced illness.  It was very important, says Ms Geddes, that unascertained causes should have been equally considered and, had they been properly considered, then the judge would not have arrived at the simplistic choice.  As Professor Fleming emphasised, the boundaries of scientific and medical knowledge are never fixed, they are always expanding and, as his experience in the field of sudden infant death syndrome has taught him, a seemingly sound conclusion in one year could be demonstrated to be unsound two or three years later as the boundaries of scientific understanding expand.

9.	Mr Cobb, in a full review of the judgment and its rationalisation, answers all these points and emphasises that the judge was not excluding unexplained alternative cause and that in preferring the evidence of Dr Martin to that of Dr Robinson and Professor Fleming he was not misunderstanding or compounding the position of the expert paediatricians.  

10.	There is great emphasis placed on the evidence of Professor Fleming that the possibility of unexplained cause rose to the percentage figure of 70, even if he concurred in the opinion of Dr Martin that the possibility of cardiac arrest on known science was in the order of or less than ten per cent.  It is quite clear to me from the judgment as a whole that the judge fully understood Dr Fleming's position and correctly recorded it in his judgment.  

11.	The collateral evidence which it is said the judge should have brought into account before announcing any conclusion was indeed of great importance, but it is inconceivable to me that that important element in the case was not always at the forefront of the judge's mind as he led the way from his beginning to end.  The judge had prefaced his judgment with a helpful list of sub-headings commencing with the first, introduction, and leading all the way through to conclusion, which was the 62nd sub-heading.  It is quite impossible to suggest persuasively that the judge somehow stumbled or lost his way when he had set the path so clearly.  

12.	Within the collateral material which, it is said, should have been evaluated before any conclusion was stated, were matters of great significance but great difficulty for the appellant.  Most important is the judge's finding in relation to repeated incidents or events that she was not a witness of truth.  Clearly from the forensic standpoint, given any degree of uncertainty in the medical and scientific field, the judge's appraisal of and confidence in the parent is absolutely crucial to outcome.  If the judge could not accept the mother as a responsible or truthful witness, then the probability of an adverse finding was very much enhanced.  

13.	Whilst I fully understand the provisional view of Black LJ that this case merited further investigation, the process of on-notice hearing with written skeletons from the various respondents demonstrated that the gain to the appellant which Black LJ emphasised was of limited range is at this hearing confirmed.  I would only want to express my anxiety at the chronology, the duration of the proceedings to date in the lower court, the fact that the appellate process seems to have taken something like nine months and that the day on which finality or some degree of order will be achieved for these children seems to be a long way off.  It is agreed by all that what is vital to the decision-making is mental health appraisals from both a consultant psychiatrist and a consultant psychologist.  I note that one of those is not even able to begin work on the case until the end of January next.  So it is of great importance that these necessarily complex proceedings are now carried forward with expedition to conclusion.  I would emphasise that nowhere could HHJ Dowse have avoided the various expert reports which he ordered.  He has had no opportunity at all to accelerate the case towards a final conclusion and the judgment which he has delivered on the preliminary issue is a model of conscientious care.  I would dismiss this appeal.

Lord Justice Pitchford:
14.	I would agree.  Mr Hirst, on behalf of the mother, has advanced three grounds of appeal which I shall, for convenience, take out of order.  It is argued that the judge, having rejected cardiac arrhythmia as a cause of or contributor towards these infant deaths, then fell into the error of regarding that finding as conclusive upon the issue whether the mother had deliberately harmed those children.  Secondly, it is argued that in so doing the judge effectively ignored the body of evidence which was capable, upon interpretation, of eliminating deliberate harm as a cause of death.  Having read paragraph 498 of the judge's judgment I can understand his argument that the judge regarded Dr Martin's evidence as conclusive upon all issues.  However, having read the whole of the judgment, and therefore paragraph 498 in its context, I am quite sure that the judge did not fall into this error.  If error it was, it was elementary and obvious.  This was plainly not a judgment which fell into elementary error.

15.	I need therefore only refer to two factors which cause me to reach this conclusion.  At paragraphs 394 to 399 of his judgment, the judge directed himself in detail as to his correct approach.  No criticism is made of that self-direction.  In particular, the judge referred to the criminal decision in the well-known case of Cannings in which judges and practitioners were advised to be careful about reaching conclusions in the face of possible unexplained causes of death which reputable experts were prepared to concede may be present.  At the conclusion of his consideration of that approach, it is perfectly clear to me that the judge was well-aware that if he was left, having considered the expert evidence, with a real possibility of unexplained death then in the absence of other cogent evidence he should be extremely wary about making any finding of deliberate harm.  Secondly, it seems to me that the judge adopted a chronological approach to his consideration of the principal evidence of events concerning these infants, in particular their hospital admissions.  As he progressed, the judge made specific findings as to the credibility of the mother, specific findings as to the probabilities as to what happened to the infant and specific findings as to possible as opposed to probable causes for those hospital admissions.  It is manifest that the judge did not fall into the error of making those decisions only in the light of the exclusion of cardiac arrhythmia as a possible cause of death.  It is also clear upon a reading of the whole judgment that on the other hand the judge had well in mind those findings before reaching his ultimate conclusion that it was established on balance of probability that the cause of the deaths was deliberate harm.  

16.	The appellant's third argument seeks to sustain a ground that the judge was plainly wrong to prefer the evidence of Dr Martin to that of Professor Fleming.  The evidence was analysed by the judge between paragraphs 400 and 455 of his judgment.  There is no doubt that the issue caused the judge some anxiety since, at paragraph 450, he said this:
"On the balance of probabilities I find the Local Authority to have shown that a cardiac cause can be excluded for the two deaths.  In view of the evidence of Professor Fleming and the observations of the Court of Appeal in Cannings and Clark, I confess to having done so with a degree of hesitation."
17.	It is also manifest that the judge took a great deal of care to ensure that he understood exactly what was the effect of the evidence of Professor Fleming who was advising the judge not to discount the unknown, namely the possibility that beyond the current limits of medical science it may eventually be established that the gene variant which these two infants possessed might, under unknown environmental circumstances, one day be shown to be a possible contributor to serious illness or death.  In my view the judge well understood the evidence of Professor Fleming on the one hand and Dr Martin on the other and gave cogent reasons why, upon the facts of the case which he was considering, he should prefer the evidence of Dr Martin.

18.	For these reasons I, too, would dismiss the appeal.

Lord Justice McFarlane:
19.	I agree.  In terms of clarity, thoroughness and overall structure, this judgment by HHJ Dowse is exemplary.  No criticism is made during the course of this appeal in respect of the judge's detailed directions to himself as to the law.  In short, on its face it is a gem of a judgment but this appeal rightly raises the question, despite its sheen, is it nevertheless flawed?  This appeal hearing has been undertaken in the course of a relatively short time in court.  That time might hide to lay parties the degree of judicial reading that is undertaken.  My Lords and I have considered the detailed points raised by Mr Godfrey and Mr Hirst in their very clear skeleton argument.  We have read the judgment and obviously considered the skeleton arguments from the other parties.  Whilst understanding the way in which the appeal is put, and in particular for my part focussing in on paragraph 450 which my Lord, Lord Justice Pitchford has so recently read and in particular the sentence that says, "On the balance of probabilities, I find the local authority to have shown that a cardiac cause can be excluded for the two deaths", I have looked to understand whether or not that does indeed display a fatal flaw in the judge's reasoning and his approach to the whole case.

20.	For the reasons that both my Lords have already given, I am entirely clear in concluding that if there is any error, it is one of the structure of the presentation and the form of words the judge used rather than something more deeply seated in the process of judicial reason.  The phrase that I have just read out can only mean that it is a description of the judge's conclusion as to whether or not a cardiac cause is probable.  If the judge had used a different form of words, for example saying, "I find that a cardiac cause has a low degree of probability and is not established as the cause of death on the medical evidence in either case", there would be very little point in this appeal.  The fact that that statement comes, as my Lord, Lord Justice Pitchford has observed, not at the end of the judgment but in fact some 27 pages prior to the end, indicates that the judge, having concluded with that view on the probabilities as to the medical evidence, went on, as he must have done intellectually, but also physically went on in the judgment to consider all of the other elements of the evidential jigsaw before coming to his final conclusion.

21.	For the reasons that my Lords have both separately indicated and for that short summary of my own approach to the case, I too would dismiss the appeal.

Order:  Appeal dismissed.