IN THE MATTER OF H (CHILDREN) [2002] EWCA Civ 1692

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE LLOYD)
[2002] EWCA Civ 1692Case No B1/2002/2264Venue Royal Courts of Justice, Strand, London, WC2, Monday, 4th November 2002
Between
IN THE MATTER OF H (CHILDREN)
Before
Lord Justice WallerLady Justice HaleMISS CAROLINE BUDDEN appeared on behalf of the Guardian.MS CLAIR JAKENS appeared on behalf of the Mother.MR ANGUS WITHINGTON appeared on behalf of West Sussex County Council.MISS KEELEY BISHOP appeared on behalf of the father.MR ADAM SMITTO appeared on behalf of D.Date 4 November 2002
[1]4th, Monday November 2002 LORD JUSTICE WALLER: I will ask Hale LJ to give the first judgment.

LADY JUSTICE HALE:

[2]This case began this afternoon as an application by the guardian of a little girl who is currently involved in care proceedings for permission to appeal against the order of His Honour Judge Lloyd in the Brighton County Court made on 25th October 2002. However, it swiftly turned into a substantive appeal, as all parties are here, and it became clear that there is plenty to argue about. The part of the order under consideration is that which restricted the factual issues to be determined at a hearing of the local authority's application in those care proceedings.[3]The case concerns a little girl called G, who was born on 23rd June 1997 and so is now five and a half years old. The local authority's case, as stated in a document dated August 2001, was that G had suffered significant harm, first because of factitious accounts by her mother of epilepsy in G. The result of those factitious accounts was that G was prescribed anti-convulsant medication from October 1998 until December 2000. The second allegation made by the local authority was of medication being given to G even in excess of that which had been prescribed to deal with the fits as described by the mother. There were also allegations of failure to attend medical appointments, particularly out-patient appointments to monitor G's condition and the medication being used to treat her; and of instability in G's home life caused by frequent moves and other problems within the household caused by the presence within it of her older brother, D, who is also the subject of these proceedings, and who, to say the least, has had a troubled life against the background of poor parental control and substance abuse. That statement was very properly submitted on behalf of the local authority in August 2001. The mother did not respond to it until 8th October this year. That is not the fault of her current solicitors. But in that response she denied the first two allegations: she denied factitious accounts of epilepsy and she denied the over use of medication in respect of G. She accepted that G had suffered significant harm because she had failed to ensure that G attended medical appointments; she accepted that failure in those circumstances might be regarded as neglectful; and she also accepted that the emotional behaviour and instability of D would have had an effect on G and that the mother's failure to control him may have led to difficulties for G. Those were therefore very limited concessions that the mother was prepared to make.[4]The care proceedings began in November 2000, after concerns had been expressed about the level of fitting reported by the mother. In October 2000 she had reported G as having one to two fits a day, despite having been on this medicine for so very long. The health visitor had visited the mother and G, and G had been asleep throughout the visit. A social worker had visited the mother and G, and G had been in a heavy sleep throughout the visit. There were also concerns about the number of different surgeries that the mother was visiting in order to obtain medication, and enquiries were made of Scotland, where the mother had previously lived, as to what had been happening there. On the recommendation of the doctor at the local hospital the, proceedings were brought so that G could be placed in foster care to establish whether she was having convulsions and, if so, how many and what drugs were appropriate to treat whatever condition she had.[5]Hence in November 2000 she was placed in foster care. No fits were reported when she was in foster care. Nor was G reported to be a particularly drowsy child. Thereafter the amount of anti-convulsant medication was gradually reduced, and by December 2000 her anti-convulsant medication was withdrawn altogether. No fits have been reported since then. It is also the case that no fits had been reported, it would appear, at any of the times when G had been admitted to hospital for in-patient treatment. Those were the facts upon which the local authority were relying during 2001.[6]A positive development in the case was that in April 2001 G was placed living with her maternal grandmother in Scotland. That placement has gone very well and it is proposed that that is where G remains for the foreseeable future. Again, no fits have been reported and G is not taking any anti-convulsant medication at all.[7]The case was due to come on this week, and so a pre-trial review was held on 25th October before His Honour Judge Lloyd. At that time the local authority informed the judge that they did not propose any longer to seek a finding in relation to those first two matters: the misreporting, the consequent medication and the overuse of medication. The mother, of course, was also wishing that those matters would not be explored at the hearing. The judge acceded to that proposal and therefore reduced the time estimate from 14 and a half to five days. There are other matters that will have to be explored at the hearing in relation to D and, although it is common ground that G will remain with her grandmother, there are issues, in particular, in relation to whether it should be under the auspices of a care order or a residence order accompanied by some form of supervision order.[8]In reaching his decision the judge acknowledged that the use of court time was not a factor in this. A large amount of time had been set aside. The exploration of these two issues would not take so long as to take up more court time than might otherwise have been expected. He also acknowledged the importance of these two issues. He said in paragraph 14 of his judgment:
" ... they must go to the future welfare of the child, they must go to the issue of contact and they must go to the future case management of the child."
Although Miss Jakens, on behalf of the mother, has sought to suggest that there is not really an issue about the future of this child which would make these findings important for the future management of the child, that, to my mind, is not a point that can sensibly be raised. Even if this child is to remain with her grandmother for the rest of her childhood, there are bound to be questions about the amount of contact she should have with her mother, the sort of contact she should have with her mother, whether in due course anybody might contemplate reuniting her with her mother, whether she might go on a holiday with her mother. All sorts of questions of that nature, which can only be sensibly addressed in the light of a firm view of what the problem might be one way or another.[9]The problem for a mother in a situation like this is that once proceedings have been started for this reason and suspicions have been raised, unless they are investigated by the court at the best possible time, there is always a risk that those suspicions will resurface at some time in the future when they may be crucial to the determination of an issue, and at that stage it may be very difficult for anybody to work out where the truth lies. It can be in the mother's interests as well as in G's for these matters to be resolved.[10]But the issue that concerned the judge was whether it was going to be possible to make findings on these two questions on the evidence that there was. Doing the best that he could late in the day, albeit as a judge who has been involved in this case throughout, he reached the conclusion that he was not going to be able to reach findings on these matters. He was also concerned that the mother might call D to give evidence in support of her accounts of G's fits and that this would be detrimental to D's welfare.[11]Given that the judge approached it in this way, it seems to me that what he was doing was the equivalent in ordinary civil proceedings of a summary disposal of the case under Part 24 of the CPR. In effect he was saying, "This is a case which has no real prospect of success. So, although I accept that it may be an important matter for the welfare of this child, there is no point in exploring it and I will summarily dispose of it now." It seems, therefore, that one must look to see whether proceeding on these two questions would have a real prospect of success, in the sense of findings along the lines initially sought by the local authority.[12]If one looks at the first of those, the misreporting allegation and its direct consequence in terms of the prescribing of anti-convulsant drugs appropriate to what was reported, one has to look at the straightforward facts which are not in dispute. It is not in dispute that the mother reported on many occasions in many different places that G had suffered fits, as recently as 10th October reporting that, despite the anti-convulsant medication she was receiving, she was suffering one to two fits a day: and the straightforward fact is that no fits were observed when G was in the care of others than her mother.[13]Those facts in themselves, to my mind, require some explanation. The objections to that were of two sorts. The first was that some of this material emanated from the time when G was living with her mother in Scotland. The local authority had made a list of the Scottish clinicians who had made various notes in a number of different places and might therefore be called to give evidence. But those Scottish witnesses had said that they had no individual recall of the events recorded in the medical notes. That may very well be the case, but those records exist and the mother can be asked to deal with those records and explain them as best she can. She is, in many ways, in a better position if the doctors who made them have no individual recall of what was said at the time but, in any event, those notes in themselves are important evidence in support of the fact that the mother had made more reports. The local authority appears not to have considered that there are all the local witnesses to the events that took place when G was taken to hospital and doctors were consulted in Sussex. Yet, clearly the evidence of the doctor upon whose report the proceedings were taken is highly material to the first issue and may also be material to the second.[14]As far as the question of D is concerned, of course it would be for the mother to decide whether she wished to call D to give evidence as to G's fits. If all that happened was that a witness statement was put in from D and if all that either the local authority or the guardian wished to do was to put it to D that his description was not a truthful one, or not an accurate one, it would not necessarily be essential for him to be called. If, on the other hand, he was called to give evidence (and it is, of course, quite possible that D will wish to give evidence in the course of the proceedings on his own behalf) it would have to be put him that his account was not a truthful or an accurate one, but it would be a matter for counsel how far to explore that with him or not to do that in the light of his vulnerability. It has to be said that there is no evidence before this court that giving evidence would in itself be damaging to D, and, as I say, there is a chance that he may be doing that in these proceedings in any event. It is very hard, therefore, to regard this situation as one in which there is not the sort of evidence which could, once properly explored, lead a court to reach a conclusion at the very least on the first of the questions which the guardian wishes to explore.[15]I accept that the second question is much more problematic: the allegation of over use of these drugs. There is a report from a paediatrician, Dr Larcher, in the bundle, which contains the observation that:
"This prescribing information does not enable one to say with confidence whether G was receiving overdoses of medication or not. This information could only have been obtained by checking the amounts of medication remaining in bottles in [the mother's] accommodation and this was not done."
But that observation has, of course, to be set against other observations, including those of the local witnesses and the observation of the social worker and the health visitor as to G's drowsiness; and we have been told that there has even been a remark by D about the mother using medication in order to keep G quiet. So that given that these matters deserve to be explored, it would be an artificial exercise to say that the second issue should not be explored along with the first.[16]In my judgment, fully recognising the difficulties with which this judge was faced -- the matter was sprung on him late in a busy day -- it seems to me that this is not a case which should have been summarily dismissed in this fashion. These are highly material questions, whichever way they are decided. They are highly material to the future welfare of G and perhaps of other children too. The guardian, who is concerned in these proceedings to protect G's interests, wishes to have them ventilated and, in my judgment, they should be ventilated.

LORD JUSTICE WALLER: I agree and I entirely agree with the reasons given by my Lady.

Order

Appeal allowed. There will be the appropriate order in relation to those who are publicly funded.

Cited in 1 later judgment