England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		23rd February 2007

MR. JUSTICE HOLMAN:

1. The purpose of this judgment is briefly to explain the reasoning and purpose behind paragraphs 1 and 2 of the order that I make today. Although in many respects this has simply been a directions hearing, paragraphs 1 and 2 are of fundamental and potentially far-reaching importance.
2. Mr and Mrs. Webster, who are married to each other, had three children, now known in these proceedings as children A, B and C. In November 2003 it appeared that child B had suffered a range of injuries. X-rays indicated, or appeared to indicate, a number of metaphyseal fractures and other bony damage to his limbs and ribs. As a result, and entirely understandably and appropriately, the relevant local authority, the Norfolk County Council, commenced care proceedings in relation not only to child B but also children A and C, who were living together as a family unit with their parents. Medical evidence was assembled and a hearing took place on 20 May 2004 in the Norwich County Court, at which the judge reached certain conclusions as to how child B had come to be injured.
3. It is relevant to mention that the whole hearing of the evidence and argument occupied a single day, with judgment being given the following day, 21 May 2004. As I understand it, the judge heard oral evidence from only two doctors, a consultant radiologist and a consultant orthopaedic surgeon, although he did consider and take into account written reports also from a consultant paediatrician and a consultant community paediatrician. The parents themselves do not seem to have assembled or relied on any medical evidence of their own at all.
4. The parents strongly deny that either of them had done anything at all which could have caused or accounted for the injuries to child B. But in the face of the medical evidence that was before him, which he described with great lucidity in his judgment, the judge had frankly no alternative but to conclude that the injuries must have been caused non-accidentally and that, realistically, the only people who could have caused them were one or other, or conceivably both, of the parents.
5. It is right to stress that, quite apart from the actual injuries observed in child B, there were a number of other matters which led both the Norfolk County Council and the children's guardian to be very concerned about the care of, and upbringing given to, those children; but it is not relevant further to mention them for the purpose of this judgment.
6. Following that fact-finding hearing, there was, as is normal, an interval for risk assessment and careful consideration to be given to what the actual outcome should be for the children. There was then a further hearing which culminated in a judgment on 24 November 2004, as a result of which the court freed all three children for adoption. In due course, children A and B were placed together with one set of adopters, and C with another, and all three children have been adopted.
7. On 29 May 2006 Mrs. Webster gave birth to a fourth child, Brandon, who is now aged about nine months. Very appropriately, having regard to the history in relation to the three elder children, the Norfolk County Council at once commenced proceedings in relation to him also. I record that there was agreement to a long period of residential assessment of Mr and Mrs. Webster together with Brandon. Other assessments of them have also taken place, and in the upshot the current position is that Brandon has lived at all times with his parents and is now living at home with them in their own home. I have read a positive and encouraging statement by a social worker dated 13 February 2006 which is positive and encouraging with regard to the care currently being given to Brandon. But obviously very great concern remains and, as a minimum, the Norfolk County Council are likely to feel that Brandon is a child upon whom they must keep a very close eye for a considerable time to come.
8. Within the current care proceedings in relation to Brandon, the question of what happened or was found to have happened to child B of course predominates. The Norfolk County Council were, at the commencement of these proceedings, fully entitled to found them wholly or principally upon the findings of fact made on 21 May 2004 in relation to child B. There has been a series of interim care orders and under section 38 of the Children Act 1989 it is sufficient for such orders that there are reasonable grounds for believing that the threshold criteria under section 31 of that Act are satisfied. Clearly, having regard to the findings made on 21 May 2004, reasonable grounds do exist. But within these present proceedings the parents, as they are fully entitled to do, put in issue once again whether or not either of them did, in fact, non-accidentally injure child B and, on the facts of his case, whether child B suffered any non-accidental injuries at all.
9. Within these proceedings and as a result of previous permissive orders of the court, the parents and their solicitors have done what it seems they did not do in the previous proceedings (I stress that different solicitors now act for them), namely seek out and obtain expert medical evidence of their own. They consulted, first, a consultant radiologist based in Scotland who has become known in these proceedings as Dr L. He first reported last autumn, and the effect of his first report was, in summary, to agree with the evidence that had previously been given to the Norwich County Court and to agree with the proposition that the X-rays and radiological data indicated that child B had been injured in a way for which no innocent or accidental explanation had been given and which must accordingly have been non-accidental. That report, however, assumed that there had been no nutritional deficiency in child B and that he had no other illness or abnormality which might have been relevant to the observed condition of his bones.
10. In that regard, Dr L was presumably relying upon the evidence that had been before the Norwich County Court and, perhaps, the summaries of that evidence in the judgment of 21 May 2004. Within his judgment, the judge described, at page 5 line 24, how both the consultant radiologist and the consultant orthopaedic surgeon who had given evidence before him "excluded … brittle bone disease and diet as possible causes." At page 6, from line 20, the judge said that each of the experts rejected various suggestions that had been put forward including osteomyelitis, brittle bone disease, poor nutrition and scurvy or rickets. He said that one of the experts had said that: "There was nothing to suggest … scurvy…" He said that the other expert agreed "…but not in quite such emphatic terms. He couched his evidence in terms such as, 'It was very unlikely, for example, that diet affected the bone quality and it was speculation to suggest so.'"
11. Thus the case in the Norwich County Court and the first report of Dr L all proceeded on the basis that nutritional deficiency and/or scurvy had been eliminated, or at any rate was "very unlikely" as any cause or explanation. With considerable persistence, the parents and their then solicitor then, again with the permission of the court, instructed a professor of general and forensic paediatrics, who is, in fact, based in and works in California, USA. He has become known in these proceedings as Professor P. There is now available a very detailed report, which extends to about 44 pages, from Professor P dated 4 January 2007. I do not propose, for the purposes of this judgment, to make any reference at all to the detail within that report, but its effect is summarised in a single brief paragraph on the last page:

"All child B's signs and symptoms, including the bony lesions, can be explained by iron deficiency anaemia and scurvy. I do not believe that he was abused or neglected."

12. That report has in turn been supplied to Dr L in Glasgow, who has now produced a second report dated 7 February 2007. It is sufficient for this judgment to quote from his concluding paragraphs headed "Discussion" on internal page 8. He says there:

"My original report was based on the premise that child B did not suffer from any nutritional deficiencies and therefore was skeletally 'normal'. This was based on the opinions of the paediatricians and clinicians involved in his care. The new evidence provided by Professor P has made a convincing case for the presence of scurvy in child B's case that I am unable to critically assess."

13. I pause there to emphasise that Dr L, who had previously considered that this remained a classic case of abusive non-accidental injury, there describes the evidence from Professor P as making "a convincing case". Dr L continued:

"I have therefore revised my interpretation of the radiological findings in view of this new evidence. It is clear that the radiological features of scurvy are almost indistinguishable from child abuse in isolation. If the clinical diagnosis of scurvy is accepted, then the radiographic findings in child B could be explained by this alone. My conclusions with regard to the mechanism of injury and force required to cause his injuries would therefore be no longer valid."

Dr L continues, importantly, with the following and final sentence:

"It is therefore not possible to make a balance of probability judgment on the radiographic findings between the two possibilities of scurvy or inflicted trauma without a clear clinical consensus as to whether child B suffered from scurvy or not."

14. It is thus clear that Dr L is not himself expressing an opinion as to whether or not child B suffered from scurvy (although he makes some more detailed radiological comments about that in the body of his report); but is saying no more than that Professor P has made out a convincing case for that diagnosis and that if, in the end, there is "clear clinical consensus" as to whether child B suffered from scurvy or not, then that impacts greatly on any conclusion from the radiographic findings.
15. So, as it seems to me, the parents have now assembled a considerable body of evidence which raises at least the realistic possibility (and I need at this stage put it no higher than that) that child B did indeed suffer from scurvy and that that may fully account for the radiological findings.
16. Armed with those reports, the parents issued within these proceedings an application dated 13 February 2007 in which they apply for "an order reopening the findings of the Norwich County Court in [the 2004 case] in the respects and on the grounds summarised in the appendix to [the application]." Sometimes, after courts have made findings as to what happened to a particular child or children, a need may arise to reconsider and possibly revise those findings within further or continuing proceedings in relation to the very same child or children. I myself have had experience from time to time of doing just that in the light of fresh medical or other evidence. This, however, is not such a case. I cannot stress too strongly that the previous proceedings, both the care proceedings and the later adoption proceedings, in relation to all three children A, B and C, are now completely over and in the past. Those children have been adopted. They are now, in law, the children of their respective adoptive parents, and, to their credit, Mr and Mrs. Webster have made plain that they do not for one moment seek to upset those adoption orders, nor interfere in any way at all in the new lives of those three children. In any event, it would, in my view, be both unthinkable and, in law, impossible for them to do so, the adoption orders having been validly made a considerable time ago.
17. There is thus no question at all of "reopening" the findings or anything else at all in or around the proceedings which have already taken place and been concluded in the Norwich County Court, and no question whatsoever of in any way reopening any decisions in relation to any of the children A, B and C.

I have accordingly dismissed that application made on 13 February 2007, and to give effect to that decision paragraph 1 of my order will say that that application

"…is dismissed, the court making it clear that in, and for all purposes directly connected with, those proceedings and the children the subject of those proceedings and the later adoption proceedings (children A, B and C) the findings of [the judge in those proceedings] must and do stand."

18. However, very different considerations apply to the current proceedings which are exclusively focused on Brandon. It does sometimes happen, entirely appropriately, that in later proceedings in relation to further children findings made in previous proceedings in relation to elder children simply stand as proof of the facts found. If there has been a clear and reliable determination that parents in some way abused an elder child, it would indeed be intolerable that that issue had to be re-litigated again and again upon the birth of each subsequent child. But findings cannot always stand, and can only ever stand if they are a reliable basis upon which to make major legal decisions in relation to current and subsequent children.
19. The general approach of the court was fully analyzed and described by Hale J. in the case of Re B (Children Act proceedings) (Issue estoppel) [1997] 1 FLR 285. It seems to me sufficient to quote from page 295F-G of that judgment where she said: "Hence if the applicant in one set of proceedings wishes to rely on findings made in previous proceedings in order to prove a case, the court will have to consider how this should be done. Frequently, although such findings are not necessarily accepted by the party concerned, that party will accept that a challenge to them in later proceedings will be futile. The court may then simply rely upon the findings made earlier. Sometimes, the party concerned or some other party will wish to challenge them. In such an event, it seems to me that the court may wish to be made aware, not only of the findings themselves, but also of the evidence upon which they were based. It is then for the court to decide whether or not to allow any issue of fact to be tried afresh. There are no doubt many factors to be borne in mind, among them the following…"
20. Hale J. then listed a number of factors which a court will or may need to take into account. Clearly, the weight and relevance of any given factor will vary greatly from case to case. Always one has to have regard to the welfare of the child concerned and, amongst other things, the impact of delay. It happens in this case that the child concerned, Brandon, is still only less than a year old and, as I have said, has lived from first to last, and continues to live, with his parents. Happily, therefore, this case does not currently concern a child who is being temporarily fostered and who inevitably faces future disruptions which may make decision making more urgent.
21. It seems to me that what, above all, I have to do is consider the state of the evidence as it was at the time of the proceedings in 2004, and the state of the evidence as it currently is (of course, completely untested at this stage) in the present proceedings. As I have said, the reports of Professor P and Dr L currently amount to significant evidence that at least possibly (and

I deliberately put it no higher) this child was suffering from scurvy, and, contrary to what the judge was told in 2004, that that does or may account for the radiological findings.

22. It seems to me that, on the facts and in the circumstances of this case, it is simply impossible in some way to put this fresh evidence alongside the existing findings and judgment of 21 May 2004, and in some summary way to try and assess the extent, if any, to which the new evidence impacts upon or can be balanced against those findings. Frankly and realistically, this further evidence necessarily puts the whole medical issue of what may or may not have happened to child B back into the melting pot. It seems to me that it is factually and intellectually impossible to try and perform some task that begins from the findings in 2004 but adds in the new evidence.
23. For those reasons it seems to me that in this case the only acceptable and feasible approach is to say that, so far as the present proceedings concerning Brandon are concerned, the whole of the findings on the medical evidence in 2004 have to be completely disregarded and the medical enquiry effectively has to start again from scratch. As a matter of practical way forward, the local authority will clearly have to supply this new material from Dr L and Professor P to all those doctors who gave oral and/or written evidence in 2004 and invite their comments. There is also already consensus that some further doctor with real and specific expertise in nutritional deficiency and scurvy will have to be instructed here in England. When all that has been done, the Norfolk County Council and indeed Brandon's guardian will have to take a view as to whether or not they consider that the balance of medical evidence by then available does or does not justify even alleging that Mr or Mrs. Webster non-accidentally injured child B. But that is for the future, and no one can speculate where the balance of medical evidence may stand. It may be that a consensus will emerge that indeed scurvy does, or may, explain what happened. It may alternatively be that a range of experts will say, and later satisfy the court, that the view of Professor P is not reliable. That is for the future.
24. It seems to me, accordingly, that I must, as I do in this case, make quite plain that the findings made in May 2004 insofar as they deal with the radiological presentation and the possibility of non-accidental injury simply cannot and do not stand as any proof of anything at all in the present proceedings. Once the medical evidence has been assembled, the local authority and/or the guardian will have to decide what, if anything, they feel they can properly allege and then prove it from scratch by fresh evidence given within these proceedings.
25. For those reasons, paragraph 2 of the order will provide:

"If, within the present proceedings which concern Brandon, Norfolk and/or the child's guardian wish to allege and prove that either or both his parents non-accidentally physically injured child B, then Norfolk and/or the guardian must respectively:

"(i) formulate that allegation by a date to be fixed ..; and

"(ii) adduce written and oral evidence in proof thereof.

"The findings of [the judge] in [the care proceedings in 2004] shall not be capable of standing as such proof."

26. I appreciate that if, ultimately, a judicial decision is reached that child B was not non-accidentally injured by either of his parents, then there will be two extant judgments in conflict with each other. However undesirable, that seems to me to be an inescapable consequence of the fact that there are two totally different sets of proceedings historically involved in this case. They concern, ultimately, the welfare of different children, and the first proceedings were utterly terminated for all time by the making of the adoption orders.
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