England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HIS HONOUR JUDGE NEWTON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th September 2012

Lord Justice McFarlane:

1. This is an appeal brought by the mother and the father of four children against the determination of HHJ Newton made in an order dated 2 July 2012. The issue arises in the course of care proceedings which are before the county court at Chelmsford and relate to four children. Initially, however, the case related to just the three eldest, who are Ch, a boy born on 27 June 2009 and therefore now two years and two months of age, Ke and Ca, twin girls born on 23 June 2011, therefore now just over one year of age. The fourth child, M, is a very young baby. She was born during the course of the proceedings on 16 June and therefore is now only some eight or nine weeks old.
2. The mother is the mother of two older children L, a girl who is now six-and-a half and K, a boy who is now nearly five years of age who is also the child of the same father as the four children in these proceedings. The father is also himself the parent of an older child.
3. L and K, the mother's older children, do not live with her and that is as a result of a serious incident of violence in the then family home in January 2008 during the course of which the girl, L, sustained head injuries at a time when she was not yet two years old. The father was convicted of an offence of common assault and went to prison for 16 weeks as a result of that incident.
4. The case is in part characterised by allegations of serious domestic violence made against the father by the mother. But the issue that brought these proceedings before the county court did not relate to that past history but arose from a specific incident on 6 June 2012 when one of the twin girls, Ke, then still less than one year of age, was presented to the local hospital with signs of bleeding in her genital area. She was ultimately assessed by a consultant paediatrician at the Royal London Hospital and the examination revealed a laceration to the hymen, perineal tears to her genital area, some sign of discolourant around the general area of the genitals consistent with bruising, six defects to the anal margin and two black hairs apparently protruding from the baby's anal canal. The paediatric advice was that the genital findings were suggestive of an acute vaginal penetrative injury and that the anal signs were consistent with a possible penetrative anal injury but were not diagnostic of anal abuse.
5. It goes without saying that findings of that nature in relation to an 11-month-old baby deserve and have been given by the lower court the most serious scrutiny and concern. The children were removed from the care of their parents initially under an agreement pursuant to section 20 of the Children Act, but swiftly these care proceedings were commenced on 13 June 2012.
6. Two occasions of supervised contact took place between the three older children and their parents. On the first occasion only the twins attended on 13 June but all three attended on 14 June. The matter came before a county court judge for the first substantive hearing on 18 June 2012 and the case was heard by HHJ Newton, the designated family judge for Chelmsford. By then, baby M had been born some two days earlier.
7. In preparation for the hearing the local authority had issued an interim care plan, which envisaged direct supervised contact on three occasions each week for an hour-and-a half each session for the two parents to see the three older children. I interpose to say, despite what I have described about the injuries to this young baby and despite the agreement between the parents that if she has been injured by direct assault by an adult, the only possible perpetrators are the mother and the father, the parents remain living together and supportive of each other in these proceedings.
8. The local authority's plan for interim contact, however, did produce stated concern on the part of the children's guardian, who questioned whether face-to-face contact between the parents and the children at this stage was in the children's best interests.
9. At the hearing on 18 June the judge heard, as I understand it, fairly brief submissions. He acceded to a request for the instruction of a psychologist to provide expert assessment of the issues around future contact between the children and the parents with that report to be filed in early August. He adjourned the question of contact for further more detailed consideration by the court to the 2 July, but he nevertheless at the hearing on 18 June made an order pursuant to section 34(4) of the Children Act 1989 giving the local authority permission to refuse any contact between the parents and any of the four children pending the hearing on 2 July.
10. When the matter came back before the same judge on 2 July he had the benefit of full submissions on the part of all parties: the parents, the local authority and the Children's Guardian. He was taken to the law and, as I shall record in due course, he was able to summarise the case-law in a manner which has not attracted any criticism in the course of this appeal and is one that certainly I for my part accept as a succinct distillation of the approach that is required by the court.
11. In addition to the information that the judge had as to the two supervised contacts that had taken place on 13 and 14 June, he had the benefit of a further statement from the social worker and a position statement from the guardian which recorded that, in between the two hearings, the mother had given details of further allegations of recent serious violence to her from the father and that the mother made it plain in the account she gave to the social worker that the three older children were present in the home at the time and will have heard at least, if not seen, the violent interaction between the parents.
12. The position of the local authority on the 2 July was that the section 34(4) direction should be continued and indeed they had issued an application to that effect on 27 June. The guardian was of like mind and she advised the court that it was difficult to see how contact could be safely managed. She advised that the children needed time to resettle and recover from the trauma and violence that they had experienced. She told the court, as she had on the first hearing, that there was a real risk that the children who had been exposed to traumatic events in the family home might be "retraumatised" by being reunited, albeit in supervised contact, with one or both of their parents.
13. Having heard the submissions the judge delivered an extempore judgment and extended the section 34(4) direction.
14. I pause there to say that the basis upon which the direction was extended has been the matter of some dispute before us today. It is submitted on behalf of the parents that the judge's direction was in effect a blanket open-ended direction and that the judge envisaged the section 34(4) status as continuing on through the remainder of the interim stages of the case without there necessarily being any further occasion for review; that he had in fact effectively decided that there should be no contact between his July hearing and at least the fact-finding hearing, which was booked for five days starting on 12 November. Counsel for the local authority and the Children's Guardian have, however, persuaded me that the judge did not intend to make an open-ended order. It is an order without any formal limit to it, but he, as I have already indicated, gave leave for the instruction of the psychologist's report in early August for the purpose of furnishing specific advice to the court on issues of contact, and in the course of the judgment he gave on 2 July he expressly entertained the prospect of review once that report is available.
15. As I have indicated, the judge made the section 34(4) direction once again on 2 July and it is against that decision that the mother and father now appeal. They have in fact issued separate notices of appeal and permission to appeal was given in relation to each by Black LJ on 20 July and 27 July respectively, and we have now had the benefit of hearing those appeals this morning.
16. The submissions on behalf of the parents are really at one with each other and the argument is that the judge was acting prematurely in determining the case as he did and that he effectively determined the issue of contact to the three older children solely on the basis of his view of the seriousness of the injuries that had been observed by the paediatrician to the young baby, Ke.
17. In relation to baby M, who was born after these highly concerning physical symptoms had been observed, the judge approached matters differently but the parents argue that the judge effectively determined the issue for M in the same way and that he was plainly wrong to look to the outcome of the proceedings, namely to look at the finding of fact that the judge predicted would follow the physical injuries to Ke and also look at the prospect of rehabilitation, which the judge it is submitted effectively ruled out at this preliminary hearing.
18. The local authority oppose the appeal. They refer to the facts that the judge had available to him and the advice the judge had from the children's guardian. They submit, as does the guardian, that this was an issue for the judge's discretion, that he approached the matter on a legally correct basis but he had a discretion to do what he thought was right for the children and he discharged his duty in that respect and that this court should not interfere.
19. That in short terms is the position of the parties before this court and it is therefore now necessary to set that in context by looking briefly at the judge's approach to matters. It is a short judgment of which we now have an approved copy. The judge summarised the facts of the case and in paragraph 2, having referred to the injuries to K he said :

"I do not jump to any conclusions as to how that trauma may have been caused, but it is clear that there has been some significant penetrative injury to a baby girl, less than 12 months old. Whatever the context, the fact remains that these are injuries which are wholly exceptional."

20. He then goes on to summarise the parents' relationship and what is said in terms about violence in the course of that and then at paragraph 5 he says this:

"I am of course aware that two contact visits occurred before the hearing of 18^th June 2012. When the matter came before me that day when dealing with the uncontested Interim Care Orders, I decided that in the exceptional circumstances of this case that contact by any of the children to either of their parents needed looking at properly. That was for good reason. [Ke] has suffered severe trauma at the hands of one or both of her parents, it seemed to me difficult to see in those circumstances how contact to her potential perpetrator, whoever that be, whether it is her mother or her father, leaving aside of course any issues of failure to protect could be in her interests. Similar considerations apply having regard to the domestic circumstances of the three older children. In those circumstances it seemed to me that notwithstanding the way in which it was put then, and is put now, the position was that the court must shield and protect [Ke], [Ca] and [Ch] until more is known."

21. He then goes on to summarise M's position, which he says is "less straightforward" and in the course of doing so he reviews the relevant case law.

"It is a finely balanced and a far from straightforward decision. I acknowledge of course not just that the welfare of each child is my paramount consideration, but that in applying the welfare checklist especially the drastic change in circumstances that I should weigh its possible cessation with great care. There is a presumption, indeed I would say a strong presumption in favour of contact by children to their parents, and particularly so in relation to a child of [M's] age in the circumstances as we know them. Ms Hyde, in her skeleton argument, sets out the law helpfully. She refers me to the West Glamorgan County Council v No P ( No 2) [1992] 2 FLR 406 case, and A, and M, as well as Re K (Refusal of direct contact) [2011] EWCA Civ 1064 and another case referred to by Mr Buck of Re L but he has been unable to give me the citation. Essentially the ratio of those cases is as follows: that pending a final hearing, contact should be maintained, save in circumstances of exceptional and severe risk, and interim orders should not prejudice that final hearing. Further, in the early stages of care proceedings extraordinarily compelling reasons must be shown to justify a Section 34(4) order. Additionally Re L, I am told decided that there can also in addition be grounds for withholding contact where there is no prospect of rehabilitation, or reunification with the parent, and that can form a reasoned basis for there being an order. Mr Buck generally takes a less trenchant view of contact than Ms Hyde and focuses his efforts on [M]."

22. Having reviewed the law in that way, the judge goes on to say at paragraph 9 :

"The situation in this case seems to me to be extremely serious. It is a case which is not entirely, but almost without parallel, where a young baby has sustained injuries of a violent nature, either by physical abuse, or physical and sexual abuse. Neither parent shows any emotion or bears any responsibility before the court, either with themselves or each other. I have no doubt that in relation to the older three children, the circumstances being truly exceptional and the risk severer that it is entirely proper that I should continue the Section 34(4) order, at least for the moment."

23. The judge then goes on to refer to the instruction of the psychologist, Dr H, and says in terms that he sanctioned that instruction because of the need to look at the real risk of the children being retraumatised by further contact and he says that:

"...for that reason it seems to me necessary for there to be some proper help and advice as to how it should be managed, and if it is ordered, for there to be some proper assessment of that to take place."

24. He then goes on to deal with M and again says that it is a finely balanced decision, but identifies three points which lead him to make a similar section 34(4) direction in her case. The three points are in summary: 1) that this a case with wholly exceptional circumstances involving a severe injury; 2) that:

"As of today it seems to me, having regard to the parents' circumstances, there is currently absolutely no prospect of any of the children being returned to their parents' care at all. It is only if there is a significant change in their domestic circumstances that the court could begin to consider the prospect of all or some of the children returning to one or other of the parents' care."

And 3) he refers to the general circumstances in the home and the dynamics of the relationship between the parents.

25. He therefore, as I have said, sanctions the section 34(4) direction in the case of M but states in the last paragraph of his judgment that he will review the continuation of that direction " at every stage, and in any event once the expert opinion is available".
26. Having summarised the position of the parties before the appeal, it is not necessary for me to go into the respective arguments in any more detail. The points they make are plain and clear and arise, if they have any substance, from the judgment.
27. I am bound to say that, when I first approached the analysis of the judge's judgment, it was not clear whether he had determined the issue in relation to the three older children at an early stage in paragraph 5 to which I have already made express reference or at a later stage. With the help of counsel I am now clear that what the judge was doing in the early paragraphs of the judgment, to which I have already made express reference, was to summarise why he had made the order that he had made at the earlier hearing on 18 June. He then goes on to summarise the law, and again I stress that that is a correct summary, before shortly looking at the older children at paragraph 9 and then M in more detail at paragraph 11 onwards.
28. That being said, plainly the same judge dealing with the case, almost effectively on the same material, two weeks later was likely to be highly influenced by the view that he had taken on 18 June and indeed endorsed in his conclusion on 2 July. I therefore look with some care at paragraph 5 of his judgment and in my view it can be helpfully divided into two parts, which I will call A and B. Part A reads as follows:

"[Ke] has suffered severe trauma at the hands of one or both of her parents, it seemed to me difficult to see in those circumstances how contact to her potential perpetrator, whoever that be, whether it is her mother or her father, leaving aside of course any failure to protect could be in her interests."

29. It seems to me that in couching the matter in that way the judge was basing his assessment of interim contact upon a concluded view as to the final outcome of the fact-finding hearing. Plainly there is to be further investigation of the injuries noted by the paediatrician in June. We are told that an independent assessment by a different paediatrician is to be filed in the course of the next two weeks and the police are conducting their own forensic evaluation. More is likely to be known as to the circumstances of the injury both from those sources but also, one hopes, from one or both of the parents opening up in a more candid way with the court.
30. The judge, therefore, in my view was at risk of acting prematurely simply on the basis, gross as they are, of the current findings in relation to the injury. The second observation to make as to his approach is that at no place in his judgment, either here in paragraph 5 or when he turns again to look at the three older children briefly later in the judgment, does the judge analyse the matters for and against some form of interim contact notwithstanding the injury that has been observed. The judge simply comes to the decision that there should be no contact without looking at how contact could take place, how it might be managed, whether it could take place with the parents attending separately, whether particular forms of supervision should be put in to the structure of the event.
31. Further, there is no analysis of the impact on the issue of contact of factors such as the young age of these children, or of the emotional factors both for and against contact. The judge refers later to the possibility of "retraumatisation" but there is no consideration, looking at these particular children, as to the possible benefit of contact even in the extremely worrying circumstances of this case. He does not consider whether any adverse factors that he has in mind could be managed or ameliorated by supervision. He does not look at the frequency of contact and whether that might also help to meet his concerns. And finally, he does not refer to the relatively positive accounts of the two contacts that have taken place. The judgment is simply silent on these and any other relevant factors.
32. Turning to the second element in paragraph 5, 5B as I will call it, the judge says this :

"Similar considerations apply having regard to the domestic circumstances of the three older children."

And he then goes on to say that that is why he made the order to "shield and protect" those three young individuals.

33. Whilst he does not spell it out, my reading of paragraph 5B and the reference to "similar considerations" was endorsed by counsel as being a reference to the domestic violence and the social dysfunction generally within the family.
34. The judge started his judgment by describing the injuries to baby K as being "wholly exceptional". Sadly the incidence of domestic violence and its presence as a factor in the decisions of the family courts is not a wholly exceptional occurrence. As the Court of Appeal decision in the well known case of Re: L Re:V Re: M and Re H (Contact: Domestic Violence) [2000] 2 FLR 334 makes plain, the incidence of domestic violence in family life is certainly not to be underestimated before the courts and that it is often the emotional fallout of violence in the family which is more damaging to children than any one particular physical episode or another. However, in this case, by referring to "similar considerations" in paragraph 5B, in my view the judge was equating the gross and very worrying signs of possible sexual assault on a baby with the history of domestic violence before the court, and if he was doing that as I believe he was, he was in my view plainly in error. Whilst each of these two elements in the case represents a risk of harm to children, the potential for harm and the degree of harm are of a different order. I approach this part of the judgment on the more likely basis that the judge therefore was referring to the impact of the children living at home rather than suggesting that the other two children were at risk of some form of sexual or physical assault.
35. At paragraph 4 the judge had correctly reminded himself that the allegations of violence were not the subject of findings and were to await determination at the fact-finding hearing. At paragraph 8 he correctly summarised the law, as I have indicated, yet here at paragraph 5B where he announced and described his decision as it was on 18 June in relation to contact of the older children, there is no indication that these two matters, the inchoate nature of the allegations of violence and the legal context, were taken into consideration. The judge was correct to say that these children required to be shielded and protected from potential harm. The question which required careful judicial evaluation was whether the necessary protection could be provided through closely supervised contact or not. Unfortunately, as I have indicated, no such analysis appears in the judgment, and the reader is left with the strong impression that the judge simply considered that the factual circumstances as he regarded them to be simply ruled out any form of contact between either parent and any of the older children.
36. Looking at the passage where the judge revisited the older children's circumstances at paragraph 9, that impression is for my part compounded. He refers to the case as being "extremely serious" and "almost without parallel" and he refers correctly to the position of the court receiving no assistance from the position of the parents and he then concludes:

"I have no doubt that in relation to the older three children, the circumstances being truly exceptional and the risk severe that it is entirely proper that I should continue the Section 34(4) order at least for the moment."

37. There again, it seems to me that in relation to the 2 July decision the judge has continued the error that I consider he promulgated on 18 June in determining the issue for contact for all three children on the basis of the apparent abuse of Ke and by conflating the seriousness of that injury with the altogether different, albeit concerning, allegations of domestic violence.
38. Looking at the position for M, the judge approaches that in a different way and it seems to me entirely correct for him to have adopted a different approach. A number of factors in relation to M stand out. First of all she is a very, very young child. The case-law to which the judge was taken emphasises the importance for young babies to have some form of contact or interaction with their parents, in particular their mothers, in the early days and weeks of their lives. That is one factor that causes M to stand out in this case as different from the other children. Secondly M, having been born after the event, is not at any risk of being "retraumatised" by exposure to either of her parents in any form of contact. It is therefore possible to look at contact differently in her case. However, the judge, in the extracts from his judgment to which I have already made express reference, if anything, whilst stating the case to be finely balanced, again determines the outcome for contact for M on the basis of the injury that has been sustained by her elder sibling. It seems to me that there were no grounds for refusing contact of some form between the parents and M at this stage of the proceedings, the risk of retraumatisation not existing in the circumstances of her case. It was a matter that required further evaluation and review no doubt, but the reasons given by the judge and the facts of the case, if they had been correctly applied to the case law that he describes, could not have supported the decision to impose a section 34(4) direction in the case of M.
39. In summary, in my view the judge, understandably struck and coloured in his view as he was by the serious nature of the injuries to Ke, fell into the trap of predetermining issues in the case which more properly should be left for the final hearing. In making that observation I am reminded of the decision now nearly 20 years ago of Ewbank J in the case of A v M v Walsall MBC [1993] 2 FLR 244. In a judgment which no doubt was characteristic both of the judge and of the time, which is therefore very short, Ewbank J dealt with a similar issue on appeal from magistrates and observed that it was not the function of the first instance court to determine matters which effectively decided the case. It was for the first instance court at an interim hearing to decide whether or not there should be contact pending the final hearing of the case and for the court only at the final hearing to determine issues such as whether rehabilitation should or should not be ruled out.
40. Family cases are organic. Cases of this sort where something appalling has apparently happened need the parents to have some limited space to understand and come to terms with what has happened and the court should at least entertain the hope, if not expectation, that the parents may change their position and move forward in a way that allows the prospect of rehabilitation to be open for the best interests of the children at a later stage in the proceedings. In my view, the judge was led into predetermining issues which were not before him. All he was to determine was whether or not there should be some form of interim contact between 2 July and when the court could look at the issue again, either following receipt of the expert's report or at a later stage.
41. I also consider that the judge, for the reasons I have given, was wrong to determine the outcome of the issue of contact, effectively, solely by reference to the injuries sustained by Ke and for the reasons I have given he was wrong , effectively, to adopt the same approach in relation to M.
42. I therefore would allow the appeal and would discharge the section 34(4) directions that the judge made in relation to all four of the children. We have been invited by counsel for the parents to go further than that, to look at the report of Dr Harrison which is now available and to make our own determination as to the interim contact arrangements. That submission and request is made in the knowledge that the matter is in fact listed before the Chelmsford County Court in nine days time on 24 September. I am not attracted by the thought that this court should now become involved in making detailed orders for contact and in particular hearing submissions and counter-submissions and possibly it may be being invited to hear evidence from Dr Harrison on the context of her report.
43. The proper place for that appraisal is at first instance level and, given that the matter is to come back before the court in such a short time, I am certain of the view that the issue of contact from now on should be determined at county court level.
44. Finally, the question of whether this court should direct that the future conduct of the case should be in the hands of a judge other than HHJ Newton has quite properly been raised by counsel. For my part I am content that HHJ Newton, with the guidance that comes from this court, is properly placed to continue the conduct of this matter. He is the designated family judge for Chelmsford. The matter is listed before him on 24 September and, for reasons which are all too obvious, there is a need for that hearing to be viable so that matters may move forward. It is also the case that the issue of interim contact will not simply be determined now by what Dr Harrison may or may not say in her report. The case is moving on on a number of fronts and the forensic evidence and paediatric expert evaluation will be available before the 24 September hearing.
45. Those two additional sources of material may well provide a watershed moment in the case, may well allow a clearer view to be taken as to what has or has not happened to baby Ke, and there may be a time at that hearing for the parents to stand up and face up to the factual situation that then will be clear. Equally the evidence may be of a nature which calls into question what if anything has taken place. It therefore seems to me that the judge at Chelmsford, the resident judge there dealing with these matters, is well placed and nothing I have said about HHJ Newton's approach to these matters in my view precludes him from conducting the further hearings in this case. I therefore would allow the appeal, discharge the s 34 (4) permission but remit the case to HHJ Newton to be considered further on 24 September.

Lord Justice Sullivan:

46. I agree

Lord Justice Richards:

47. I also agree.

Order: Appeal allowed; direction discharged; case remitted