M & M C (Children) [2002] EWCA Civ 499

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE HAMILTON)
[2002] EWCA Civ 499Case No B1/2001/2404Venue Royal Courts of Justice, Strand, London WC2, Tuesday, 12th March 2002
Between
M & M C (Children)
Before
Lord Justice ThorpeMr Justice NeubergerMISS S BRADLEY QC & MISS E CARLETON (instructed by Walker Crompton Halliwell, Lancashire BB4 7AB) appeared on behalf of the AppellantMISS BLAND (instructed by Bury Metropolitan Borough Council, Lancashire BL9 0SW) appeared on behalf of the RespondentsDate 12 March 2002
[1]Tuesday, 12th March 2002 LORD JUSTICE THORPE: This is an application for permission with appeal to follow directed for oral hearing following consideration of the case on the papers. The application attacks the outcome of a hearing in front of Judge Hamilton, sitting in the Manchester County Court, on 12th October 2001.[2]The case raises a relatively simple problem and one capable of relatively easy solution as far as the boundaries of the issues in this case can be defined, but there may be wider consequences of our determination. Accordingly, I think it is important to try and establish the record in the present case with some precision.[3]The proceedings were brought by the local authority seeking care orders in respect of two children: J, born in 1997 and D born in 2001. The principal issue of fact was as to how J and another child, named J (No.2), whose future had been settled without the need for litigation, came by some serious injuries.[4]On 8th May the district

judge made an order, paragraph 1 of which must be recited in full:

"The matter be listed before a circuit judge at a venue to be decided, time and estimate one day, for determination of the following issues: (a) the nature of the injuries sustained by the child; (b) the time and place where such injuries were sustained by the child; (c) how such injuries were caused and in particular whether the cause of such injuries was:- (i) intentional acts or omissions by any person, or (ii) reckless acts or omissions by any person, or (iii) careless acts or omissions by any person falling short of recklessness, or (iv) an accident for which no person can reasonably be held responsible; (d) the extent to which any explanation for those injuries offered by any person is consistent with such expert medical evidence as is accepted by the court; (e) the identity of any person or persons whose acts or omissions caused or occasioned or enabled those injuries to be inflicted; (f) the extent to which there was a culpable failure to protect the child on the part of any party or other person or persons."
[5]After an unforeseen adjournment that issue came to trial before Judge Hamilton on 19th July. He delivered a judgment, the broad thrust of which was to reject the evidence of both the mother and Mr C but to fix liability for the assault more upon Mr C than upon the mother.[6]The order drawn to reflect that judgment is in many ways deficient. Nowhere can the reader glean what was the outcome of the day's trial. It is, in my opinion, important to observe the formalities. Where a court has directed the determination of specific issues then the judgment of the court performing the task should first address those issues in turn, and specifically, so that it is evident that there has been a complete and thorough performance of the operation. Then those findings should be set out in the order drawn to record the outcome of the day's proceedings. The order can then go on to make such further directions as are appropriate, such as the direction recited in this order to the effect that the first, second third and fourth respondents must file statements detailing their respective positions in reaction to judgment by a certain date.[7]Those position statements were, in the main, filed, and in the following month of September the mother confessed to a social worker that she was responsible for the injuries to J (No.2) but not for the injuries to J. That confession was subsequently formalised in a statement filed in the proceedings. That led the local authority to issue an application on 26th September which sought a directions hearing before Judge Hamilton. At that appointment the application said that:
"The judge should consider further directions. It is felt by all parties that the matter should be returned before Judge Hamilton so that directions can be given in relation to the following issues. 1. An assessment of CC. 2. The possibility of a further assessment of KM. 3. To consider whether any further directions may be required in the light of the recent admissions."
[8]When the parties appeared in front of Judge Hamilton on October 12th we understand that counsel for the mother made an application for a retrial of the preliminary issues. That application was supported by counsel for Mr C. The judge delivered a short judgment, in which he said:
"Having heard the submissions which have been made in the light of the further statement which has been filed by the Mother, which is dated 28th September, in which she makes admissions as to inflicting the injuries upon J [(No.2)], and the request for a further hearing to consider the findings I made, I have to say I am not convinced that that is either necessary or, indeed, appropriate."
[9]He went on to explain that he had had no confidence in the earlier statements of the mother or in her oral evidence or in the oral evidence of Mr C. Why then should he attach any particular significance to a fifth statement?

The judge ended this short judgment by saying:

"So, having given a fair amount of consideration to the situation... my conclusion is that it would not be appropriate to seek to have these matters reopened by having another finding of fact hearing because I have to say I doubt whether the conclusions that I could arrive at would, in fact, be necessarily any different."
[10]The application for permission to this court was supported by a skeleton argument which makes a number of telling points. It is said that the situation that has arisen in this case is not unusual, and that it poses problems that have not so far found any conventional solution. It is said that the judge must have fallen into error in declining to adjust to an admission of responsibility which might be true and which, if ignored, would expose the court to inevitably mistaken assessments of risk in relation to the mother, both as a parent to these children and in relation to children more generally. It is also said that any refusal to accept and weigh this statement risked a false appraisal of what was necessary to protect these two children for the future and perhaps more generally other children. Those, of course, are two sides of the same coin.[11]The application when listed for oral hearing attracted a skeleton from Miss Bland, who represents in this court not only the local authority but also the guardian ad litem, in which she sought to support the judge's conclusion.[12]The need to observe particular care in the drawing of orders is further illustrated by the order drawn to reflect the judge's conclusion on 12th October. That order records in paragraph 3 the refusal of the application for permission to appeal to this court made by both the mother and Mr C in reaction to the judge's ruling. What it fails to record is that essential ruling, namely that the application for retrial had been rejected.[13]I have considerable sympathy for Judge Hamilton. Manifestly these investigations into adult responsibility for child abuse often lead to results that are bitterly resented and rejected by the adults who are criticised and condemned. There is a tendency for their reaction to be immoderate and often manipulative, and plainly trial judges have to be firm in not permitting the court's important duty to investigate and establish past fact to be derailed or diverted by what may be simply strategic manoeuvring in response. Particularly must courts be guarded in acceding to applications for yet another trial of an issue of fact in what should be the relatively brief period between the preliminary hearing of disputed facts and the subsequent hearing to dispose of the outstanding application for care orders.[14]So the notion that the process initiated on 8th May and completed on 19th July should be torn up as though it had never happened simply because one of the adults had subsequently made a statement shifting position was plainly unlikely to succeed and was, in my judgment, rightly rejected by Judge Hamilton. That of course is one extreme. The other extreme would be to reject the development absolutely and treat the previous finding of fact as incapable of being revisited. There is, between these two extremes, an obvious middle way, and that is to conduct the disposal hearing in such a way as to adopt the process of preliminary hearing as the foundation, and then to make such adjustments as are necessary to reflect subsequent developments rigourously tested through the process of examination in chief and cross-examination. Judge Hamilton clearly suspected that there was no greater value in the fifth statement than in the earlier statements, and in that suspicion he may be right. But no complete conclusion can be reached without affording the mother the opportunity of explaining herself in the witness box and answering as best she can the local authority's response, namely, that the fifth statement is contradicted by or is inconsistent with, the medical evidence.[15]Had the application to the judge on 19th October been more moderately put I am by no means clear that the judge would have rejected it. Indeed I suspect that he would have acceded to a sensibly expressed application that would have allowed both the mother and Mr C to reopen the investigation to the extent of putting before the judge the fifth statement in the context of the mother's explanation, Mr C's reaction, and the extent to which the experts revised or extended their previous opinions having considered the fresh evidence.[16]There are, of course, both advantages and disadvantages of the practice that has developed for isolating the specific issues of fact for preliminary hearing. This case only illustrates one of the risks inherent in the process. I do not think that that risk can be eliminated. It amounts simply to one of the disadvantages to be set against other advantages. On balance the disadvantage is an acceptable and a manageable one providing that courts avoid either the extreme of plunging into a complete reopening of the issue of fact, or, on the other extreme, excluding the subsequent development from proper consideration in its context at the disposal hearing.[17]Accordingly, I think that Miss Bradley is entitled to receive permission to appeal and that her appeal is entitled to succeed to the extent indicated. It is hard to express that success in any concrete way since there is so little in either the order of 19th July or 12th October that reflects the outcome on either day, and maybe it is enough to say that the judgments that we deliver this afternoon should be transcribed and made available to the court prior to the next hearing on 5th April.[18]Miss Bradley has suggested that Judge Hamilton should stand down from further conduct of these proceedings and Miss Bland has adopted a neutral position. I have myself considered carefully the arguments advanced by Miss Bradley which, in the end, amount to little more than the importance of Mr C's confidence in the continuing proceedings and his subjective view of their fairness. I do not see that any criticism can be mounted against the manner in which Judge Hamilton has dutifully conducted these proceedings to date. He has criticised Mr C, not only as a witness, but also as a parent. However, there is no evidence to suggest that either criticism is necessarily undue. Judge Hamilton is a judge of great experience in this field and Mr C can be confident that if anything emerges during the future course of these proceedings that requires a fresh assessment of either his credibility or his responsibility he will receive that from Judge Hamilton.[19]Accordingly, I would not be prepared to make any direction that this case be listed in front of another judge. If it so chances to be listed in front of another judge, well and good, but against the considerations that Miss Bradley has advanced must always be set the advantage of continuity of management and decision; and there is no doubt at all that a judge coming to this case afresh would not be able to pick up the threads as easily or as swiftly as Judge Hamilton.[20]That subsidiary application should, in my view, fail.[21]MR JUSTICE NEUBERGER: In his judgment on 19th July 2001 in relation to the injuries suffered by J (No.2) and J,

Judge Hamilton said this:

"On the basis of all the information available to me, whilst I cannot totally discount the possibility that the mother may have inflicted these injuries, I find that it is more likely than not that they were in fact inflicted by Mr C..."
[22]That was in the course of the judgment given in the first stage of a two-stage care proceedings application.[23]The finding must, I think, be a conclusion that, on the balance of probabilities, the injuries were caused by Mr C not least because the judgment was given in the context of a hearing following directions which anticipated findings as to the cause of the injuries. The issue is, therefore, whether, as my Lord says, that question can be revisited at the second stage of the care proceedings to be held on 15th April. On the face of it, it might be said to be inappropriate, where a judge has reached a conclusion on the issue of fact, that he should be entitled to reconsider it in light of later evidence, in this case because one of the parties has changed her evidence.[24]In the present case, however, I am satisfied that this is a finding which the learned judge should be entitled to reconsider, and to be invited to reconsider if he thinks it right to do so, at the hearing on 15th April. First, this is a case involving children in care, where the normal rules of issue estoppel are, to put it at its lowest, more flexible - see Re B (Children Act Proceedings) (Issue Estoppel) 1 FLR 285. Secondly, the local authority in this case very responsibly do not oppose the proposal provided it does not lead to the hearing of 15th April being lost. Thirdly, it is not as if this would render the earlier hearing a waste of time - for instance, the judge's findings as to the fact that the injuries were caused intentionally rather than by accident, will stand. Fourthly, there will be no prejudice to the conduct of the case because 15th April is fixed for a five-day hearing which should not need any extending if this question is to be considered. Fifthly, no order has been drawn up and therefore the matter is technically not res judicata. I share my Lord's regret as to the way in which certain aspects have been inappropriately recorded - or not recorded, in court orders but, in this case, it is something which Mr C can fairly rely on.[25]Sixthly, I do not think that this conclusion involves interfering with the decision of the judge: the course my Lord suggests was not the course the judge was invited to take on 12th October. He was invited to reconsider the matter there and then, in effect by way of a rehearing, which would have been a drastic course, and I can well understand his refusal not to take it. Seventhly, in the course of his main judgment, it seems to me that the judge indicated that this very issue might be open for reconsideration.[26]So far as the question of the identity of the judge at the 15th April hearing is concerned I again agree with my Lord. I am quite satisfied that the mere fact that the judge reached a conclusion for reasons he gave on an earlier date does not disentitle him from reconsidering that conclusion, or for another judge to be required to hear the matter. It would be a most unfortunate message for this court to send out, if every time a judge was entitled to reconsider a conclusion because of a witness changing his or her mind, the case would have to be heard before a different judge. That would be quite contrary to the public interest.[27]There might, in some circumstances, no doubt be a justification for the matter coming before a different judge. If we were reversing the judge's refusal to reconsider the matter, and if he had expressed himself in a way which made it unfair, or at least ran a serious risk of an appearance of unfairness if he was then to re-hear it, then ordering the hearing before a different judge may well have been inevitable.[28]In the present case, having considered the judge's reasons as expressed on 12th October I do not think there is any risk of unfairness, a perceived unfairness. First, as I say, he was not being asked to decide the question which we are considering, namely, whether he should be able to reconsider the issue when it came back before him on 15th April. He was being asked for a rehearing there and then. Second, on two occasions he said that what was contained in the mother's fifth statement was not necessarily the truth, and that the result if there was a rehearing would not necessarily be any different. In other words it seems to me clear that he was not saying that he would not accept what the mother said, but that he might not accept what the mother said, in her fifth witness statement. That appears to me to be a perfectly proper thing to say. Furthermore (as I read the second half of the second page of the transcript of the judgment) he was saying that he found that Mr C was liable on the information and evidence then available to him, and that he accepted the possibility that a different decision might be justified on the basis of further evidence. In those circumstances I think it would not be unfair nor would it involve the appearance of unfairness if Judge Hamilton continued to hear this matter. As my Lord has said, continuity of judicial management is highly desirable. To my mind, while in an appropriate case the interest of justice must override those considerations, I am confident they do not do so here.[29]I therefore agree with the order that my Lord proposes. (Application granted; costs to be assessed in accordance with the Community Legal Service (Costs) Regulations 2000).

Cited in 9 later judgments