England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT PETERBOROUGH
Her Honour Judge Davies
PE16C00425

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 May 2018

Lord Justice Moylan :

1. The issue in this case is whether, to adopt King LJ's words from Re S-W (Care Proceedings) [2015] EWCA Civ 27 at [29], there has been an "unfair summary disposal" of the parents' application for a rehearing of care proceedings.
2. The parents appeal from the order made by Her Honour Judge Davies on 18^th January 2018 dismissing (a) the mother's Part 25 applications for the instruction of medical experts; and (b) the parents' applications for a rehearing of care proceedings the first of which had concluded on 26^th October 2015 with a supervision order and the second of which had concluded on 14^th November 2016 with care and placement orders. The first proceedings concerned only the parties' elder child. The second concerned them both; as at the date of the hearing of the second proceedings they were aged just under 1 and 2 years (I will call them C and D).
3. Peter Jackson LJ gave permission to appeal on two grounds, namely:

(1) Whether the judge was entitled at a directions hearing to reach the decision that there should not be a rehearing of the previous care proceedings and;

(2) Whether the judge decided that there should not be a rehearing without having the necessary information.

Background

4. The mother is 25. The father is aged 27. C and D are their only children.
5. Care proceedings were first taken in respect of the older child, C, in April 2015. At the final hearing in October 2015 His Honour Judge Greene found that a large bruise sustained by the child when he was four months' old had been caused unintentionally by the father as a result of using excessive force. He made a number of other findings including that the parents had failed to seek medical attention when C had been dropped and sleeping with C in their bed in spite of advice they had been given not to do so and when the father was taking lithium at night which made him sleep very heavily. The judge made a supervision order for 12 months.
6. Following D's birth, a number of concerns were raised about the mother's care, in particular as to her ignoring advice about, again, sleeping with the baby and about feeding. She and D were kept in hospital following his birth because the mother was not following advice about feeding and he was losing weight and because she was not following advice about co-sleeping. As a result they were kept in hospital for approximately two weeks rather than the usual two days.
7. The Local Authority instructed a psychologist to advise what support the parents should be given. This was provided.
8. When D was 4 months old the mother showed the health visitor a bruise which he had on his left calf. It was linear in shape. He was admitted to Hospital and was found to have a trans-metaphyseal fracture of his left wrist and a bruise on his shoulder. All three injuries were considered likely to be non-accidental.
9. This led the Local Authority to commence care proceedings. At a four day hearing in November 2016 HHJ Greene heard evidence from a radiologist, a consultant paediatrician (Dr W) and a psychologist as well as a health visitor, a specialist family support worker, a social worker, the guardian and the parents.
10. The parents' respective cases at the hearing in November 2016 were as follows.
11. The father said that he did not know how D had been injured. He also said that he had complied fully with the supervision order which had required him to be supervised at all times when with the children. The father did not seek the sole care of the children. He accepted that his "difficulties" meant that he could not care for them alone. He wanted the children returned to the care of himself and the mother.
12. The mother's case as to how D had been injured changed during the course of the proceedings. In respect of the fracture she said first that she did not know how it had happened and could not think of any incident in which it might have happened. The mother then said that there had been an incident in which the father had picked D up and he had cried. At the hearing she suggested that the fracture had been caused by C when he had pulled D. The judge found that the mother had caused this injury.
13. The mother's case in respect of the linear bruise also changed with a number of different explanations being put forward. The judge found that she had caused both bruises. The linear bruise was described by the judge as "significant", because of evidence that it would have been caused by something with a "sharp straight edge" and because of it would have required considerable force. The other bruise was less severe.
14. The judge pointed to the fact that the first proceedings had only concluded in October 2015. Despite the concerns raised in those proceedings the judge found that the mother was "dismissive and self-opinionated in her attitude to professionals who are trying to help her, rejecting advice and preoccupied with her own needs".
15. The mother sought the care of the children either with the father or with a friend of hers. The latter proposal was advanced on the basis that the judge would find the father had caused the injuries. It was not formally advanced until the final hearing when the mother proposed that the father should leave the home and the friend would move in. The judge recorded that the father "clearly seemed to be taken by surprise by this suggestion".
16. The judge found that the fracture had been caused by "a yanking twisting mechanism and that it would have been immediately painful". D "would have been obviously in pain and cried". The judge also found that "As a result, the accident would have been memorable and would have left a carer in no doubt that he had been injured".
17. The Judge recorded the mother's position as follows:

"The Mother's explanations have gone from no explanation at all and no incident to then saying in the next statement that it must have been (the father); and finally, not until the hearing last week, suggesting that it must have been caused by [C] in an incident that she says she remembers in mid-April where he got hold of [D's] arm and pulled him through his crib, moving the crib across the room."

The judge found the mother's evidence to be "vague and inconsistent and unconvincing" and concluded that she was not an honest or reliable witness.

18. The Judge also found that the bruise to D's leg was a "significant injury". "It would have required considerable force". It was a deep bruise caused by "something with a sharp straight edge".
19. The judge found that the fracture and the bruises had been caused by the mother through excessively rough and inappropriate handling - "forceful brusque handling" of D.
20. The Judge also had evidence from a psychologist who had concluded that the mother required intensive long-term therapy. If the mother was found to have caused any of the injuries the psychologist expressed concerns about the children being in her care.
21. The judge summarised his conclusions as follows (para 47):

"Sadly, in respect of the mother, I accept the evidence of (the psychologist) and (the social worker) and the Guardian that the mother requires significant long-term therapy to effect the necessary changes without which she will continue to be dismissive of advice and parent children in a way that is likely to cause them attachment disorders and fail to meet their needs or keep them safe."

The Rehearing Applications

22. On 10^th November 2017 the mother applied for a rehearing of the care proceedings. The application was based on new medical evidence which was said to provide solid grounds for the proceedings to be re-opened.
23. The medical evidence was a letter or report dated 2^nd March 2017 from Professor Grahame, a Consultant Rheumatologist. In his opinion the mother "demonstrated the presence of unequivocal signs of the Ehlers-Danlos syndrome – hypermobility type" ("EDS"). He also stated that, based on this diagnosis, there is a 50% chance that her children will inherit the condition.

"In my view, it is quite likely that any bruising they manifest could be explained on the basis of an inherited connective tissue disorder resulting in spontaneous bruising due to impairment of the tensile strength of the collagen protein, which normally provides protection to subcutaneous capillaries (blood vessels). There is thus a prima facie case for suspecting that her two sons may have inherited the condition, thereby carrying the implication that any excessive bruising may have resulted from EDS/HM rather than necessarily implicating non-accidental injury."

24. A directions hearing took place on 21^st November 2017. This records that the mother's application was deemed also to be an application by the father. Extensive directions were given including that any applications for the instruction of further experts had to be filed and served by 15^th January 2018. The parents' applications for a rehearing was listed "for further directions" on 18^th January 2018 with a time estimate of two hours.
25. The mother issued two Part 25 applications. The first application was for the instruction of a geneticist to carry out testing of the mother and the children.
26. The second application was for the instruction of a Professor of Molecular Medicine to report on whether there could be a link between the metaphyseal fracture and EDS. An article which he had published was also relied on: it is entitled "Multiple fractures in infants who have Ehlers-Danlos/hypermobility syndrome and/or vitamin D deficiency". The article was based on "a case series of 72 infants with multiple fractures originally diagnosed as caused by alleged child abuse".
27. A statement was filed by a social worker in which it was said that the children had very active lives with their prospective adopters and that there were no reports of any easy bruising. There were records of some bruises (on three occasions in the course of over 15 months) C had had when in foster care.
28. Professor Grahame provided a further report in which he answered a number of questions:

"1. I was not made aware of D's fracture. I was made aware (by being shown a photograph of D) that he shared the chest deformity of pectus excavatum, with his mother, thereby indicating beyond reasonable doubt, that he shared the same phenotype (heritable disease pattern) with her.

2. I did not have access to the mother's medical records.

3. She self-referred herself to my clinic in order to establish whether or not she might be suffering from a heritable disorder of connective issue so that, were it to have been inherited by her two young sons, it might explain their bruising.

4. My notes do not refer to any comments that [the mother] may have made to me regarding the circumstances of the children's removal."

29. A further report was obtained from the Consultant Paediatrician who had given evidence in the course of the substantive proceedings. She referred to the fact that EDS had been mentioned in her original report as being a condition which "can present with bruising" but that, "No family history of this was suggested at the time of preparing my report". Dr W agreed that, if D had inherited this condition, he would bruise more easily. She noted that "there is no previous record of easy bruising in his medical history. I am also not aware if this has been noted during his period in foster care". She also referred to the fact that D had been pre-mobile. The bruise to his leg had been linear in shape consistent with direct impact from an implement or his making contact with an object with this pattern.
30. She also considered that EDS would not account for the presence of the metaphyseal fracture. She commented that, at present, the diagnosis of this form of EDS "rests entirely on clinical findings" as the genetic basis is not known. Finally, she said that assessment by a paediatric rheumatologist and/or a clinical geneticist would be required "to consider this diagnosis".

January 2018 Hearing

31. Following an advocates' meeting on 10^th January 2018 an email was sent to the judge indicating that all parties had agreed that two hours would be insufficient and that the mother's Part 25 applications for expert evidence would be "the substantive applications to be determined at the hearing before you on 18^th January".
32. It is also relevant to consider what was set out in the position statements prepared for the January hearing.
33. The position statement filed for the Local Authority referred to the three-stage test set out by Sir James Munby P. in In re Z (Children)(Care Proceedings: Review of Findings) Practice Note [2015] 1 WLR 95 and then stated that it was thought "all parties agree" that at the January hearing the Court was being asked to consider the first stage only:

"Should there be any reconsideration at all of the findings made by the court? Reconsideration at this stage would mean an investigation/assessment to see if the children have inherited EDS (hypermobility) from their mother. The court is therefore considering whether there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge (Re Z paragraph 33)".

34. The Local Authority expressly challenged whether there was any basis for the application for a rehearing and submitted that there was no real reason and there were no solid grounds for revisiting the fact-finding exercise undertaken in the previous proceedings. The Local Authority made additional submissions in respect of the Part 25 applications, "in the event that the court finds that Stage 1 of the process is satisfied".
35. The mother's position statement submitted, under the heading "What must the Mother demonstrate at this stage?", that, quoting from Re Z, there was "some real reason to believe that the earlier findings require revising". It was also submitted that, in respect of the Part 25 applications, the Court would need to consider "what information the Court will require in order to determine the application for permission to re-open the fact-finding hearing".
36. The father's position statement dealt extensively with Re Z and the legal framework. He supported the instruction of a new medical expert (a geneticist) and sought the listing of a hearing of the "1^st stage: solid evidence test". It was submitted that the father could have been considered as a potential protective factor for the children in the event that he was not responsible for the bruise as determined in the first proceedings.
37. The Guardian's position was as follows:

"Subject to hearing the submissions of others, in the absence of any further symptoms in either child since being with the adopters and the absence of any explanation for the metaphyseal fracture, she does, however, not consider that Professor Grahame's letter provides a sufficiently cogent basis for re-opening the findings of abuse in this case.

She appreciates that the matter may be a finely balanced one and if the matter is to be taken further she would urge the court to ensure that there is the absolute minimum of delay before the matter is decided."

January Judgment

38. HHJ Davies summarised the parties' respective positions. The parents sought a rehearing and directions for the instruction of further medical experts. The Local Authority opposed the applications submitting that there were "no grounds for re-opening this case." The Guardian, having heard the other parties' submissions, also opposed the applications.
39. The judge set out the test as formulated in Re Z and made it clear that she was addressing only the first stage. In her view HHJ Greene's judgment of 14^th November 2016 made it clear that "this is not a single issue case". She asked herself whether there was "some real reason to believe the earlier findings require revisiting?" The test was not a high one but there must be "real, solid grounds for challenge".
40. The only findings being challenged were in respect of the fractured wrist and the bruises suffered by C and D. The judge reviewed the history and evidence and Professor Grahame's report and then set out her conclusions:

"29. When I look at all of the information that is before me today, I come to the conclusion that there is no real reason to believe that the earlier findings require revisiting. The mother hopes that Ehlers Danlos Syndrome might provide an answer to the reason why the children have sustained bruising and why D had a fractured wrist, but the evidence in this case is that the children did not bruise easily. The mother had described the children as playing roughly, or at least C being rough with D. There is no evidence of C having unexplained bruising. The only bruise that was identified on C was the one which the father accepted may well have been caused by him being what the father says is heavy-handed.

30. This is not a case of excessive bruising. This is not a case of multiple fractures. This is a case where C had one bruise, D had two bruises and a fractured wrist. This is not a case which is helped by the article by Dr Horlick which is headed "Multiple fractures in infants who have Ehlers Danlos Syndrome". In the examples he gives in his paper, the children have numerous fractures. In the first one, the child had 14 fractures. The second child had a whole range of fractures of the right tibia, left tibia, ribs, clavicle, radius, ulna, etc. The third child had 12 fractures, so his assessments went on with all these children having, as he says in the paper, multiple fractures. That is not this case. It is not a helpful document.

31. I am satisfied that, when I look backwards at the history of this case, there are no reasons to believe the earlier findings require revisiting. I look forwards as well, starting from the date of the order of His Honour Judge Greene. There are no references to either child having unexplained bruising after Judge Greene's order. It is right to say that, when the mother was having contact to the children, on three or possibly four occasions, she pointed out bruises to the contact supervisors. They were followed up by the social worker and explanations were given. One child had hurt its leg on a ladder. The other child had hurt itself and hit his head on a toy tractor. There was what the mother herself describes as ordinary toddler bruising of these children before October 2016, but no unexplained bruising or fractures after that date.

32. The children have had LAC medicals. They have had adoption medicals. The medicals indicate that the children are thriving. They are doing well. There is no concern raised by any of the doctors who have examined them that these children suffer from Ehlers Danlos Syndrome or unexplained bruising or elasticity of the skin or difficulties with feeding or any of the other trigger factors that might lead one to look for a diagnosis that fits in with Ehlers Danlos Syndrome."

41. The judge also noted that the mother had made no reference to the significant difficulties she had outlined to Professor Grahame;

"There was no mention of these problems in her written statements. There was no mention of her suffering from fatigue or chronic pain. There was no mention of her having to take days out and spending says in bed. In fact, the contrary. She gave detailed explanations and a detailed diary of all the activities she had done with the children … She may have chosen not to mention these problems at the time. It would be unusual for her not to mention these significant matters in the course of assessments but they were not mentioned."

42. The judge concluded as follows:

"34. Although the mother says she has now had her diagnosis, I am satisfied that does not amount to a solid ground for challenging the findings made by Judge Green. I have done my best to ensure I have not set the test too high. If the children had been suffering unexplained bruises, if there had been unexplained fractures, if there had been issues relating to the other symptoms of EDS, that might have been a ground for saying that there is no evidence about the children. That might have led to testing of the children to see what was causing the bruising, their fractures, their feeding habits, their chronic pain or their chronic tiredness. That might have led to a re-opening of the evidence. That is not this case.

35. In this case, I am satisfied that there are no grounds for challenge. Any hope or speculation the mother had is not solid. There is no real reason to believe the earlier findings require revisiting. I therefore find that this case has not crossed the first stage of the tests set out by the President in the case of Re Z and followed by the subsequent authorities. I refuse the application."

Submissions

43. I am very grateful to all counsel for their focussed but comprehensive submissions. I propose only to summarise the submissions but I have taken into account all the matters raised when determining these appeals.
44. Mr Alomo advanced the mother's case with considerable skill. He correctly, in my view, identified the focus of the mother's challenge to the judge's decision as being concerned with the procedural fairness of that decision. He submitted that the answer to the question, was it fair to determine the rehearing applications at the hearing on 18^th January 2018, must be no. The order of 21^st November 2017 had directed that the applications be "listed for further directions". The email recording the outcome of the advocates' meeting had identified the Part 25 applications as the "substantive" applications to be determined at the hearing. He also submitted that there remained material which needed to be obtained before the first stage of the Re Z approach could be determined.
45. Accordingly, he submitted that the hearing before the judge should have been limited to a case management hearing of the applications for a rehearing. It was unfair for the judge to have substantively determined those applications having regard to the history. He accepted that no application was made for an adjournment nor had it been submitted that the judge required more information before she could determine the first stage. However, he submitted that, if it was procedurally unfair, it remained procedurally unfair whatever the advocates at that hearing had or had not submitted.
46. Mr Alomo accepted that the information outstanding from the November order was not required but submitted that the judge should have followed the suggestion from Dr W that assessments from other medical experts be obtained. In addition, he submitted that the mother might have explored other evidential avenues if she had appreciated that her rehearing application could be substantively determined at the January hearing. He further adopted the submission made on behalf of the father as to his potentially being a protective factor if the previous finding was overturned.
47. Mr Alomo also submitted that the Part 25 applications should not have been relegated to second place and that the factors listed in section 13 of the Children and Families Act 2014 should have been the focus of the January 2018 hearing. There are, he submitted, more general public interests reasons why a rehearing should take place including the broader interest in the consequences of EDS and the children's right to know the truth. If the children have EDS the outcome of the previous hearings might have been different.
48. Mr Bailey on behalf of the father also submitted that it was unfair for the judge to have substantively determined the rehearing applications at the January hearing. The November 2017 directions had not been completed in that not all the transcripts of the experts' evidence had been obtained.
49. The court should have determined only the Part 25 applications and timetabled the applications to a hearing to determine whether they should be permitted to proceed. The new evidence required to justify a rehearing does not have to be particularly strong. It must be "solid" but that is not a high threshold. Mr Bailey submitted that the judge did not sufficiently consider the father's separate application in respect of the first proceedings.
50. Mr Bailey submitted, as he had before the judge, that the structure of the second proceedings could have been changed by a diagnosis of EDS because the father might have been able to put himself forward as a protective factor if the finding made in the first proceedings was set aside.
51. Ms Gold on behalf of the Local Authority submitted that her position statement had made clear that the judge needed to address whether there were solid grounds at the January hearing. This was the first and necessary step. No party submitted that the judge was not able to determine that issue at that hearing. Further, if the judge was not satisfied as to there being solid grounds there would have been no purpose in listing any further hearing.
52. As to the father's position, Ms Gold submitted that it was unrealistic to suggest that the position would have been changed materially and he would have been able to put himself forward as a protective factor. The father's limitations and "difficulties" were not confined to the bruise. There was, she submitted, a "mass" of other evidence about the limited role he had played and he had accepted that he did not have a "sufficient connection" with C. The psychologist had addressed the father's "limitations" which were "very apparent".
53. Ms Gold also submitted that no further evidence was required to enable the judge properly to determine whether there was any substance to the applications for a rehearing. This included the further assessments identified by Dr W.
54. On behalf of the Guardian, Ms Hughes submitted that the judge's approach had been fair and was consistent with the overriding objective especially having regard to the Guardian's view that delay would be prejudicial for the children. The hearing had lasted four or more hours. Ms Hughes also referred to the fact that no party had sought to argue that it was just a directions hearing and that Stage 1 could or should not be determined. In her submission neither the mother nor the father's case had solid grounds.

Determination

55. Nobody has sought to argue that the approach to an application for a rehearing should be other than the three stage test as set out in Re Z. Accordingly, in my view, the court was bound to consider whether the new evidence justified, at least, further evidence being obtained as sought by the Part 25 applications or whether the rehearing applications had insufficient substance to permit them proceeding any further at all.
56. I appreciate that the November 2017 order provided only for "further directions" with a two hour time estimate. However, by the parties agreeing that the Part 25 applications were the substantive applications to be determined, as referred to above, it was inevitable that the court would have to determine whether the rehearing applications should proceed even to this extent. If there was any doubt that this would be an issue, it was clearly set out in the Local Authority's position statement and was also identified in the Guardian's position statement.
57. I would accept Mr Alomo's submission that the question of procedural fairness cannot depend on the course taken by a party's legal representatives at the hearing. However, it is clearly relevant that no application was made to the judge for the hearing to be adjourned and that no party submitted to the judge that she needed further information before she could decide the first stage. Indeed, it is clear that no party argued that the judge should confine herself to giving directions.
58. I have come to the clear conclusion that the judge had the evidence/information required to decide whether to dismiss the rehearing applications. As referred to above, it was not argued at the January hearing that she did not have the information/evidence necessary to determine those applications fairly. I do not consider that the observation in Dr W's additional report was to that effect. She was stating no more than that, if the court considered further reports were necessary, from whom they should be obtained. I am also not persuaded that there was any other evidence which might have been deployed (such as, as proposed by Mr Alomo, a further statement from the mother) and which was necessary for the fair determination of the rehearing applications.
59. It may be in some cases that other material which is not yet in existence needs to be obtained before the court can determine the first stage. However, I would suggest that such cases are likely to be rare because the application itself needs to be based on the existence of new evidence or information which casts "doubt upon the accuracy of the original findings": per Hale LJ in In re B [1997] Fam 117 at p. 129. The present case is not such a case. In my view, the judge was entitled to decide that she had sufficient information/evidence to enable her fairly to determine the rehearing applications at the January hearing.
60. Whilst I see the force of the argument, based on the fact that the November 2016 order referred the January hearing only as a directions hearing, for the reasons given above, I do not consider that procedural fairness limited the judge to giving directions. The judge had to decide whether further expert evidence was necessary. Part of this exercise inevitably required her to consider the merits of the rehearing applications and decide whether they had sufficient substance for the purposes at least of the Part 25 applications. As I have said, the need for the judge to address this issue was raised by both the Local Authority and the Guardian.
61. Given that the diagnosis of EDS would rest "entirely on clinical findings", the judge was right carefully to analyse the evidence relating to the children. She pointed to there being no history of unexplained bruising. As was submitted during the appeal hearing, this might in part beg the question because the introduction of EDS as a possible reason for bruising might impact on whether the identified explanation was the correct one. However, of greater significance is the absence of bruising other than on a limited number of occasions. The judge referred to the children having had LAC medicals and adoption medicals all of which indicate that they are "thriving". There is, therefore, an absence of clinical evidence which would suggest that the children have EDS at least as having caused excessive bruising.
62. Further, the absence of any history of excessive or even extensive bruising is significant in itself. At the first hearing there was one episode (with one bruise) which was explained by the father having used "excessive force". The only reason to rehear the first proceedings would be to reconsider the determination made as to the cause of this bruise. The outcome, namely the making of a supervision order, has been superseded by later events. Even if the cause of this bruise was put in doubt, there is nothing to suggest that the father's position in the second proceedings would have been materially different. His limitations and difficulties were such that there is no solid reason to conclude that the outcome of the second proceedings would have been different.
63. As to the second proceedings, the broader evidential position is the same as in respect of the first proceedings including there being no evidence of extensive or excessive susceptibility to bruising.
64. Even if the cause of the bruising was put in doubt, there are no solid reasons for concluding that the outcome of those proceedings would be different if reheard. As was accepted during the hearing, EDS would not account for the fracture. Further, as the judge said, there were a number of factors which led both to the threshold determination and to the making of care and placement orders.
65. In my view the judge was right to conclude that there was no real reason to conclude that the earlier proceedings required revisiting. There was no real reason to cast doubt upon the HHJ Greene's conclusion in his November 2016 judgment that the mother required "significant long-term therapy to effect the necessary changes without which she will continue to … parent children in a way that is likely to cause them attachment disorders and fail to meet their needs or keep them safe". The new evidence relied on by the mother would not have impacted significantly on this determination and certainly not such as to justify a rehearing.
66. Dealing with other aspects of the submissions, I consider that the judge did sufficiently consider the merits of the applications of both the mother and the father. I do not accept that the Part 25 applications should have been the judge's primary focus. I also do not accept that the circumstances of this case are such as might justify a rehearing on the broader grounds advanced by Mr Bailey.
67. Accordingly, in my view it was fair for the judge to determine the rehearing applications at the January hearing. She had the information required to enable her to do so. There was no reason, in fairness, why that determination should have been postponed to a later hearing. Finally, I consider that she reached a decision which was clearly justified. I, therefore, propose that this appeal is dismissed.

Sir Ernest Ryder, Senior President:

68. I agree.
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