England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
Her Honour Judge Butler QC
OG12C02214

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/07/2013

Lord Justice Ryder:

1. HW is the mother of seven children by three different fathers. The children range in age from 11 years to 18 months. Although all of the children were concerned in public law children proceedings under part 4 of the Children Act 1989 that were begun by Nottingham City Council, the key issue in those proceedings was who perpetrated non-accidental injuries that were sustained by the youngest child, B. The children were all represented and it is their Children's Guardian who brings this appeal. At the conclusion of the appeal hearing we allowed the appeal in part, re-constituted the proceedings and directed a welfare hearing with reasons to follow. We asked for assurances from the local authority that in the interim protective arrangements would be in place, short of the removal of the children.
2. Of the three fathers, only AS, the father of the youngest two children, took any active part in the care proceedings relating to his children. HW is no longer in a relationship with him. Immediately prior to the proceedings HW was in a short relationship with AB, who is not the biological father of any of the children. He was made an intervenor in the proceedings to respond to the question of who caused the injuries to B. Other adults who were present in AB's house on 10 October 2012, the day the injuries were reported, and who the local authority submitted to the court below could properly be said to be in the pool of possible perpetrators, were not made intervenors and accordingly did not respond to the allegations or take any part in the proceedings. No appeal was brought from that case management decision.
3. The precipitating incidents that led to the proceedings occurred in or about October 2012. In early October a referral was made by the school of the fifth child, C, to say that C was distressed and that red marks had been seen on her wrists. It is agreed that HW has accepted that she had handled C roughly and inappropriately. Then on 10 October 2012 one or more of at least three people, HW, AB and/or AS, noticed a swelling to the side of B's head. A call was made to emergency services by AS, the child's father, and it is thought that NHS Direct followed up that call and spoke with mother. HW apparently described to NHS Direct how B had fallen down stairs about a week before. B was taken to the emergency department of a hospital where medical investigations revealed:

i) A 3cm by 4cm brown bruise and a smaller similar bruise on the child's lower chest;

ii) A number of circular brown and grey bruises on each side of the child's abdomen which are apparently consistent with fingertip bruising;

iii) Grey circular bruises about 1cm in diameter on the middle of the child's left thigh and on the back of the child's right thigh;

iv) Two large yellowy-green bruises on the child's lower back on each side of the spine about 4cm by 3cm; and

v) Serious head injuries described as bilateral soft tissue swelling, very thin acute subdural haematomas and bilateral calvarial fractures (i.e. to both the left and right sides of the child's skull).

4. The medical evidence included the opinion that the injuries to B were non-accidental; the two fractures were likely to have been caused by two impacts and were most likely to have been caused within the previous few days rather than the previous two weeks. The bruising to the child's abdomen and legs was thought to be consistent with finger tip bruising.
5. The adults' explanations for the injuries sustained by B were given on a number of occasions both to various professionals and to the court in oral evidence. It is apparent that the adults' accounts were inconsistent with each other. It is not appropriate to go into more detail than is contained in this judgment because the analysis of the evidence was incomplete and this court does not have the transcripts of evidence that the judge heard nor all of the witness statements that were before the court.
6. On 21 January 2013 the court directed the case to be listed for a fact finding hearing on 19 and 20 February 2013. That hearing was ineffective because it became clear that the issue of alleged perpetration concerned not only HW and her former partner AB but also the child's father, AS. The fact finding hearing was re-listed and heard on 18 and 19 April 2013. The judge concluded that:

i) Mother's admitted rough and inappropriate handling of C in October 2012 is "a very different matter to the subject matter of this finding of fact hearing";

ii) The pool of possible perpetrators of the injuries to B is HW, AS and AB;

iii) The swelling to B's head was noticed by HW and AS on 10 October 2012 when the child was returned home after being cared for by AB;

iv) The unchallenged medical evidence is that the injuries to B are non- accidental and were caused 10 to 14 days before the first medical examination on 10 October 2012. (Despite that finding the judge recites the unchallenged evidence of the medical experts that "it is more likely that the injuries occurred recently (within a few days of presentation) rather than weeks ago");

v) "it is accepted by all [parties] that [B] did suffer a non-accidental injury and more than one substantial blow caused this: either by a hard object striking his head or his head striking a hard object; it was not caused by falling down stairs; and at the most, it was inflicted ten to fourteen days before scans took place on the 12^th October". (Despite the judge making this finding, it is not an accurate record of the unchallenged evidence of the doctors);

vi) Whether or not AS tried to deceive anyone by his lack of candour about his involvement on 10 October 2012, he is absolved of blame for the injuries because there is no evidence that he inflicted the injury;

vii) Mother's indignation was genuine and there is no evidence that she injured B; "I find that she did not injure [B]"; and

viii) AB had the care of B on 10 October 2012 and on some days leading up to that day; "I find that there is insufficient evidence to identify [AB] as the perpetrator of these injuries".

7. The judge did not deal with the fact of the bruising sustained by B or its significance, nor whether the admitted bruising of C during inappropriate and rough handling had any relevance to the question of the perpetration of B's injuries. In submission this court was told that the judge focused on the skull fractures despite the existence of a Scott Schedule of findings sought by the local authority which had been produced at the court's request during case management. When the issue of the bruising was raised during cross examination, the judge gave an indication about her focus and the advocates chose not to pursue with the witnesses the other allegations contained in the Scott Schedule.
8. It was not immediately apparent from the papers that in closing submission, the local authority had concentrated their attention on obtaining a finding of perpetration against AB. In that, they were joined by HW. The local authority's position in closing is somewhat opaque and Ms Barbara Connolly QC, who did not appear below, has done her best to explain the position adopted by them.
9. As a consequence of the judge's findings that none of the adults in the pool of possible perpetrators was responsible for the injuries, and two of them were specifically exculpated, the local authority asked for clarification whether AB remained in the pool of possible perpetrators. The judge confirmed that "she did not make such a finding" and that "there was insufficient evidence to state that [AB] was a potential perpetrator of the injuries". It is not agreed between the parties what that meant, but I regard it as clear that the judge intended that AB was not included in the pool.
10. The local authority supported by the Children's Guardian then asked for permission to appeal and in support of that application made submissions about the other adults who had not been regarded by the court as being in the pool of possible perpetrators. The judge refused permission and refused an application to stay any consequential change that there may be to the status quo for the children.
11. HW asked for the dismissal of the local authority's applications for care orders and AS applied for the discharge of the exclusion orders made on 19 November 2013 so that he might return home. AB asked for permission to disclose the judgment to the probation service, he having been recalled on his licence from imprisonment in respect of a burglary conviction following the investigation of the injuries to B. The judge gave time for consideration and then discharged the interim care orders in respect of the two youngest children and the exclusion order relating to AS. On 3 May 2013 the judge refused permission on behalf of the children to appeal and gave permission to the local authority to withdraw its applications relating to all seven children. By that process the care proceedings came to an end.
12. The Children's Guardian appeals with the permission of Black LJ and the court is very grateful to all involved for facilitating an urgent appeal within a week of the notice of appeal being issued.
13. The grounds of appeal are as follows:

i) The refusal to include three further named adults in the pool of perpetrators was plainly wrong;

ii) The failure to investigate the bruising sustained by B (which is an issue upon which it is said that the judge refused to permit cross examination) was plainly wrong;

iii) The failure to analyse the evidence as to when it was that swelling was noticed for the first time and by whom was plainly wrong and in so far as the judge rejected evidence relating to the child's presentation on 8 and 9 October 2012, she did so without reason and/or was plainly wrong;

iv) The test applied by the judge to the inclusion and exclusion of potential perpetrators was an error of law;

v) The finding that none of the pool of possible perpetrators inflicted the injuries to B and two of them were exculpated from having done so is plainly wrong.

14. The Children's Guardian heard and read the evidence that was available to the court below. In her submissions to this court, she accepts that there was insufficient evidence on the balance of probabilities to identify one or more perpetrators of the injuries to B and she also accepts that there was sufficient evidence on the balance of probabilities to exculpate AS (and of necessity exclude him from the pool of possible perpetrators). It is submitted on her behalf that the judge should have left HW and AB in the pool of possible perpetrators and that even if she had good reason to prefer mother's evidence, as she said she did, that there was at least sufficient evidence to leave AB in the pool.
15. The local authority accept that the Scott Schedule findings were not actively pursued in the face of the judge's indication about her focus on the skull fractures. They also accept that in closing they asked the judge to make findings against AB and that there was insufficient clarity about their position on the pool of possible perpetrators. It was because the judge excluded AB from the pool that they asked the judge for permission to appeal. They now support the exculpation of both AS and the child's mother, HW. They point to the fact that if the judge accepted mother's evidence, there was ample material to retain AB in the pool of possible perpetrators and that it was either an error of law or the judge was wrong on the facts or in her evaluative judgment to have excluded him from the pool. That said they do not support the appeal because the children are now all together and placed with their mother, HW, and it is submitted by them that this would be the likely conclusion of a welfare hearing were that to occur. They have also come to the conclusion that they can work with mother to protect the children. Finally, the local authority conceded that there should have been a further welfare hearing to consider the balance of any evidence that had not been heard and how the children were to be protected.
16. Before this court and with some inevitable hesitation given the submissions of others, not least the local authority, the Children's Guardian maintained that this court should direct a re-hearing and put in place adequate protective measures for the children. Save for the Children's Guardian, the parties do not support the potential disruption that such a course would entail with its attendant uncertainties and accusations at a time when the children are settled and in a circumstance where the local authority is saying that no order may be necessary. The local authority and HW have a working arrangement that is yet to be committed to paper and it is said that AB had ceased to be a relevant person in the lives of the children or their mother since before the fact finding hearing.
17. The exercise which faced the judge was no more complicated than many in the County Court. Although authorities were not cited in the court below, the principles relating to the tests which are to be applied to the identification of perpetrators and the inclusion of someone in the pool of possible perpetrators appear to have been clearly understood by the local authority and by the children's representatives. They have very recently been reiterated with clarity by the Supreme Court in In the matter of J (Children) [2013] UKSC 9. At paragraph [19] of J (Children) Lady Hale recollected that in In re S-B [2010] 1 AC 678 the Supreme Court reaffirmed that the standard of proof to be applied in identifying the perpetrator of injuries which are found to have been non-accidental is the simple balance of probabilities and at paragraph [34] Lady Hale recollects that the test for the identification of the pool of possible perpetrators at the attributability and welfare stages described by Dame Elizabeth Butler-Sloss P in North Yorkshire County Council v SA [2003] EWCA Civ 839, [2003] 2 FLR 849 as the 'real possibility' test was approved by the Supreme Court in In re S-B at paragraph [43].
18. In these proceedings the threshold in section 31(2) of the Children Act 1989 was conceded by those who took an active part in the proceedings. It is trite law that the terms of section 31(2) do not import blameworthiness for the significant harm that has been suffered by the child. It is sufficient for it to be proved that the care given to the child is not what it would be reasonable to expect a parent to give him and that is an objective test having regard to the subjective needs and characteristics of the child in question (see, for example paragraph [23] of J (Children) reaffirming Lancashire County Council v B [2000] 2 AC 147 at 166 per Lord Nicholls).
19. As Lady Hale explains at paragraph [2] of J (Children), "there are … three questions to be answered in any care case: first, is there harm or a likelihood of harm; second, to what is that harm or likelihood of harm attributable; and third, what will be the best for the child". However desirable it may be, it is not necessary to identify a perpetrator for a care order to be made or to put it in the words of Lady Hale at paragraphs [23] and [36] of J (Children) and Lord Nicholls at page 166F in Lancashire: the attributability condition can be satisfied when there is no more than a possibility that the parents are responsible. Furthermore, the threshold can be crossed even though the identity of the perpetrator remains unknown (see In re O [2004] 1 AC 523 at paragraph [19]).
20. In any case where perpetration is in issue, a welfare question may arise as to the relevance of the inclusion of the parents or primary carers in a pool of possible perpetrators in order to consider what order, if any, will best safeguard the welfare of the child. In these proceedings, significant harm had been caused to B, that harm was non-accidental and the court decided, rightly, that it was appropriate to identify a perpetrator or pool of possible perpetrators so as to determine what was best for the child.
21. I turn now to the grounds of appeal.
22. Neither the appellants nor any other party appealed the case management decision to restrict the pool of possible perpetrators to HW, AS and AB. Although there was reference to the question at the end of the hearing, no party made an application to reconsider the evidence to understand whether the child needed to be protected from anyone else i.e. to identify whether any other named persons should be considered to be within the pool of possible perpetrators. The summary dismissal of the proceedings at the conclusion of the fact finding hearing had the effect that the third question identified by Lady Hale: "what will be best for the child" was not answered by reference to whether B (or any other child) needed to be protected from anyone and if so, how was that protection to be provided. This court does not have the original evidence or an analysis of that evidence to be able to come to a conclusion whether the pool was properly identified. It is not possible to say that the judge's refusal to include three further named adults in the pool of possible perpetrators was wrong rather that the exercise as conducted failed to answer the third and frankly critical welfare question and that was an error of law.
23. The appellants are able to submit with some force that it was because the judge did not set out her analysis of the fine detail in respect of the facts in issue that she found it impossible to identify a perpetrator or to conclude who remained in the pool of possible perpetrators. The judge's failure to consider the relevance of the bruising caused to C by her mother, the nature and extent of the bruising caused to B, and the disparate accounts of the timing and provenance of the first sighting of the swelling on B's head is patent on the face of the judgment. Any one of these issues if analysed in detail may have been capable of assisting the judge in the identification of timing, and hence perpetration. They were an overt part of a very carefully pleaded written case opened by the local authority at the beginning of the hearing and having regard to their potential significance as primary or secondary facts, the evidence on the same deserved analysis so as to record reasons for findings or at least to give reasons why findings could not be made.
24. The judge's summary of the medical evidence so far as it related to the timing of B's skull fractures is also inaccurate. If the judge had concentrated on the critical un-contradicted opinion that the fractures were caused within a few days of the child's presentation on 10 October 2012 rather than within 10 to 14 days of 12 October 2012 she would have focused the court's enquiry on the critical timings and the awareness of the adults concerned at least on 8, 9 and 10 October 2012.
25. The judge dealt with her findings as to perpetration in rather short form. In essence the judge regarded the lack of direct evidence as to perpetration, for example, the account of an eye witness, an admission or a direct forensic connection, as being fatal to the local authority's case to the extent that she exculpated both mother and father. Her only consideration of indicative evidence was that B had lived with his father since October 2012 and there had been no incidence of injuries since then. She was entitled to have regard to this last matter albeit that it needs to be considered in the context that proceedings were extant, but with respect to the judge the exercise of analysing the primary and secondary evidence relating to those in the pool of possible perpetrators is missing.
26. There is no reasoned basis on the face of the judgment for the conclusion that the mother and father of B should be exculpated. Accordingly, it is not possible to say that the judge was correct in coming to that conclusion. The court had appropriately decided that it should investigate a pool of possible perpetrators whether or not a finding as to perpetration could be made about any of them and so as inform the welfare determination. Having come to that decision it was incumbent on the court to analyse the evidence and give reasons for the inclusion or exclusion of any adult in or from the pool. The judge moved from the investigation of perpetration to exculpation and/or exclusion from the pool without identifying any appropriate test or giving any sufficient reasons.
27. If one assumes that there will be proceedings in which no perpetrator can be identified on the balance of probabilities, it is all the more important to scrutinise the evidence and carefully consider whether anyone and if so who should be included in the pool of possible perpetrators. The test for inclusion is not set high so that as a matter of legal policy it acts as an effective protection mechanism for children who have been harmed by someone and whose welfare is still to be determined. The children in this case are entitled to ask how has their welfare been safeguarded given the severity of the non-accidental injuries inflicted on B?
28. The almost automatic move from a fact finding hearing to the discharge of the interim care orders without adequate reasoning or further investigation of the balance of the welfare questions was simply inappropriate. On the facts of this case, that may have been a consequence of the decision to split fact finding from welfare determination which can have the effect that the penumbra of welfare evidence is not available to the judge during fact finding. It should be remembered that perpetration is part of the welfare enquiry not a single issue threshold question. Parties and courts should be astute to apply the guidance concerning split hearings given by the House of Lords in Re B (Children) [2008] UKHL 35, [2009] 1 AC 11 at paragraphs [74] to [76].
29. The decision to give permission to withdraw the proceedings was an error of law or was wrong as an exercise of evaluative judgment on the basis that there was a welfare enquiry to be completed within which the placement of the children needed to be decided. By way of example, no written agreement has yet been entered into between mother and the local authority relating to voluntary monitoring of the children and in particular B and no decision has been made as to whether the pre-existing supervision of the children by their maternal grandmother and when she is at work an agency carer funded by the local authority is either appropriate or necessary.
30. There is an argument that the judge's findings of fact or evaluative judgment are wrong. The Children's Guardian is able to point to the absence of reasoning in the judgment but the local authority supported by the other parties are able to respond that, save for the exclusion of AB from the pool of possible perpetrators, they are agreed that the judge's conclusions fairly represent the evidence that she heard and read. In most cases, the lack of reasoning would have been fatal and an appeal would have been allowed. We are with some hesitation persuaded that in this case there is good potential for a protective agreement being reached within which on a without prejudice basis AB has no part to play in the family. That would avoid the significant disruption that a further fact finding hearing would entail with its attendant uncertainties and the strong possibility that the local authority would feel unable to protect the children other than by removing them again from their mother's care: a step which we are told would have very adverse consequences for some if not all of the children as it would involve their inevitable separation.
31. I would allow this appeal in part, set aside the permission to withdraw the proceedings so that they remain extant and direct that a welfare hearing take place before the same judge so that the third question is properly answered by reference to the factors set out in section 1(3) of the 1989 Act. In particular, given the severity of the non-accidental harm caused to B and the fact that there is no identified perpetrator, it is necessary to come to a conclusion whether the risk of harm necessitates an order and if so what order of those available to the court i.e. whether HW can work with the local authority to protect the children from a perpetrator or perpetrators unknown.

Lady Justice Gloster:

32. I agree.

Lord Justice McCombe:

33. I also agree.