B (A Child), Re [2008] EWCA Civ 1547

Case No B4/2008/0309[2008] EWCA Civ 1547
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SUNDERLAND COUNTY COURT
(HIS HONOUR JUDGE BRYANT)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 18 th November 2008
Before
LORD JUSTICE THORPELORD JUSTICE LAWRENCE COLLINSLORD JUSTICE GOLDRING
IN THE MATTER OF B (A CHILD)
(DAR Transcript of
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Mr S Cobb QC and Mr N Stonor (instructed by Sunderland City Council) appeared on behalf of the Appellant.
Ms P Scriven QC and Mr Rowlands appeared on behalf of the Respondent Mother.
Miss Matthews appeared on behalf of the Respondent Father.
Judgment
[1]This appeal concerns a little girl, Alexandra, born on 27 April 2007, who was examined in hospital on 24 July when some three months of age and discovered to have very serious injuries: a major skull fracture, a fracture of the tenth rib posteriorly and a fracture of the third and fourth vertebrae. Inevitably the local authority intervened, applying for an interim care order on 9 August 2007. She was removed from her mother on that day to foster parents where she has ever since remained.[2]The first stage of the forensic process initiated by the local authority was, inevitably, to establish what had happened to this little girl, and a trial took place on 28 July 2008, regrettably almost a year after her removal. The trial was conducted by a retired circuit judge, sitting as a deputy, Judge Bryant. He heard evidence over four days, principally the evidence of the parents, the evidence of the health visitor and evidence from three experts. At the end of the hearing he invited written submissions from all parties and delivered his reserved judgment on 28 August. The applicant (“the local authority”) was profoundly dissatisfied with his findings and conclusions and applied for permission to appeal by a notice dated 12 September. That notice was considered by Wall LJ on 19 October when he granted permission to appeal, regarding the local authority’s application as a strong one.[3]In this court Mr Stephen Cobb QC leading Mr Stonor, who appeared below, has advanced the case for the local authority. Ms Pamela Scriven QC leading Mr Rowlands has responded for the mother and Miss Matthews for the father. This hearing has also been attended by the guardian and by the maternal grandmother to observe.[4]The factual circumstances that the judge had to consider were somewhat unusual in that the parents had had a relatively brief and shallow relationship which had broken down prior to the medical investigations. Each parent to some degree raised doubts or suspicions against the other. That, of course, is commonplace, but an unusual feature of the case is that there is no doubt that, prior to the medical examination, the mother complained not only to the extended family but also to the health visitor that the father had dropped Alexandra on two separate occasions. Another unusual feature of the case was that the health visitor had observed the father handling the child and had expressed consternation at the extremely rough way in which he considered it best to wind the child.[5]So inevitably the investigation before HHJ Bryant focussed on these two episodes: the dropping of the baby, which the father did not deny, but in his evidence, as the judge was to find, sought to minimise. The mother had not been a direct witness of either fall, but had been in the vicinity, and had certainly been on the scene within moments of the staircase fall. In relation to the other injuries, the rib and spinal fracture, there had been a good deal of focus on the observations of the mother and health visitor, and investigation as to whether the injuries might have been caused by the fashion in which the father winded the child. Certainly there were no clear boundaries set forensically that predicated that all the fractures must have resulted from the two falls and the rough handling. The local authority did not so confine their case and so, in a sense, causation was at large.[6]The judge expressed his ultimate conclusions in a way that was singular to himself in that he declined to approach the issue on what is a commonplace basis: were these injuries accidental or non-accidental? He directed himself that that was an incorrect approach, saying that he had only to consider whether the injuries amounted to harm attributable to the care given to Alexandra not being what it would be reasonable to expect a parent to give her. He took that language from section 31(2)(b)(i) of the Children Act 1989.[7]Thus when we come to search for his ultimate conclusions we found them expressed in this language. In relation to the father, in paragraph 34, he said:
“The father may have injured his child accidentally but he did so in a way that can properly be described as displaying gross carelessness or recklessness and falls well below the standard of care which it would be reasonable to expect a parent to give.”
[8]In relation to the mother, in the following paragraph, he said that although he was satisfied that mother did not cause any of the injuries, she was justifiably to be criticised for her failure to take Alexandra for medical treatment particularly after the second fall. He said:
“This failure was potentially harmful and was unreasonable.”
[9]Nevertheless

the judge went on to find in his final paragraph:

“The threshold criteria are made out to the extent and in the manner I have indicated in this judgment.”
[10]Miss Matthews, in her written skeleton argument, raised a question mark over the necessity for this appeal, given that after judgment the local authority had assented to the considerable extension of the mother’s contact with A; given that a psychological report, furnished by an expert on joint instructions, had basically assessed each parent positively; and given that she conceded on behalf of the father that he could not possibly expect unsupervised contact to his daughter before she attained school age. Mr Cobb’s response was that the local authority could not manage this case on the basis of judicial findings that were clearly flawed and which were incapable of reconciliation with the evidence that the judge had heard, both lay and expert.[11]In an endeavour to avoid the unattractive outcome of retrial, Mr Cobb formulated four propositions which he invited the court to make if we were persuaded to allow the appeal and set aside the judgments and findings. Having heard Ms Scriven in response, we indicated that it would be beyond our remit to follow Mr Cobb to the extent that he invited and that, were we persuaded that the appeal succeeded, then the inevitable consequence must be retrial.[12]So am I persuaded that Mr Cobb has made good his appeal? I say at once that I am. What essentially the judge has attempted to do is to sanction the continuation of child protection proceedings by a finding that the section 31 threshold has been crossed whilst at the same time essentially accepting the explanations of the parents and accordingly exonerating the mother entirely, and the father substantially, from any condemnation beyond the condemnation that recklessness would attract.[13]Mr Cobb submits that the judge has essentially fallen into the trap of inconsistency where ultimately he elects to reduce the father’s responsibility by the acceptance of his explanations and accounts but when in recording those explanations, in paragraph 19, he had said:
“I did not find father’s account of what happened convincing. There seems to have been from the beginning attempts to minimise what happened particularly in the accounts he gave after each incident to mother. This is not in the least surprising any mother is going to be at the very least displeased with the father who drops their baby on its head and is going to be even more displeased if he does it twice within a few days. In such circumstances it would be quite likely that the father would describe the incident in a way that would make the degree of blame to him as small as possible and would also make it appear that the likelihood of harm to the baby was as small as possible.”
It does seem to me that, in a case in which a baby has suffered fractures as severe as this within such a short space of time the judge, if he is to arrive at such mitigating or exonerating circumstances, has to have a heavy investment in the credibility and responsibility of the parent whose conduct is under the microscope. Once the judge had found the father’s account of what had happened to be unconvincing, there are a whole realm of other possible causative circumstances that had to be, at the very least, surveyed by the court.[14]Mr Cobb’s criticism of the way in which the judge dealt with the causative chain in paragraph 26 of his judgment seems to me equally well made. The judge, having recorded that there were two versions of the event that conflicted -- one from mother, one from father -- continued:
“On either version this would, according to what Dr Chapman said in evidence be a fall from a significant height and, given that Alexandra fell to the left, there is a likelihood that, as she fell, she would have hit the hard base of the banisters. If that is so that seems to me to provide a satisfactory explanation for the skull fracture sustained by A.”
[15]In respect of that judicial surmise, first of all there had been very little evidence as to the existence or possible contribution of the banisters, and perhaps even more fatal is the fact that medical evidence demonstrated that a fall against the hard base of the banisters would have produced a different sort of fracture of the skull. Thus it seems to me that the judge’s conclusion that his theory provided a satisfactory explanation is contrary to the evidence and particularly the expert evidence.[16]I also accept Mr Cobb’s submission that the judge’s conclusion at paragraph 25 gives rise to considerable concern. He said:
“Looking at these two incidents; clearly there are differences between the various accounts of what happened and indeed there are other differences in the accounts of mother and father which in my view are not of great relevance so I will not elaborate on them.”
It seems to me that it was crucial for the judge carefully to evaluate differences in the various accounts that the parents offered. Any confidence that the judge was to repose in either depended upon an evaluation of these conflicts of evidence, and to simply say they are not of great relevance and need not be elaborated is in my opinion too cavalier an approach.[17]In relation to the fractures of rib and vertebrae the judge’s acceptance that the father had caused these by reverting to what the judge called “his proven methods” of dealing with wind again does not square with the evidence that after the observation and criticism of the health visitor he had become less aggressive in his handling of the child. These are very serious injuries, and it seems to be inherently questionable as to whether they could be, as it were, finessed by the sort of explanation that was advanced on father’s behalf.[18]Mr Cobb is equally critical of the manner in which the judge in paragraph 13 of his judgment dealt with the evidence of Dr Chapman, who had said that the level of trauma in the child was such as he would expect to see in a fall from a first-floor window or in a road traffic accident. This evidence was of considerable weight given that it was culled from research that was accepted by all the experts to be, as it were, the golden source. The judge said of that:
“This reply as it stands is absolutely valueless because Dr Chapman gives no indication as to what height he would regard as significant and the words ‘road traffic’ relate to a type of accident with no indication of its severity. Road traffic accidents range from the trivial to the catastrophic.”
It seems to me that that is a completely unacceptable way to dismiss the agreed expert evidence founded on reputable research. If the judge truly had any doubt as to what Dr Chapman meant or was saying he should have asked him.[19]Finally I accept Mr Cobb’s submission that the judge dealt in a similarly inappropriate way with the statistical evidence offered by the experts. Of that he said:
“Even if a figure such as that given by Dr Chapman that ‘only about [1%] of domestic falls (from a height of 90-100 cm) result in a skull fracture’ was accurate, which seems inherently unlikely, and even if we were dealing with a fall from that height which we are probably not, it would be of minimal assistance in attempting to determine causation after the event.”
It does not seem to me that it was wise for the judge to treat the statistical evidence in that way and I am concerned that he, as a judge rather than as an expert, describes the report of Dr Chapman as being “inherently unlikely”.[20]Standing back from this case, these were three extremely serious injuries sustained within a short period of time, and a too ready judicial acceptance of explanations which in themselves do not bear the support of the expert witnesses risks putting either this child or other children at risk in the future. Despite all that, Miss Matthews has skilfully said on her client’s behalf that these are serious findings nonetheless and that they will, as it were, accompany him as he moves forward perhaps into future relationships, perhaps into future parenthood. However Mr Cobb has in my judgment made good his case, made good his entitlement to have these issues tried out again by another judge in the Newcastle Care Centre. That is always a regrettable outcome, particularly in public law proceedings where the future of a child must be settled as soon as possible. Some comfort can be taken from the fact that probably the local authority will need more time in order to test the mother’s capacity to provide safe parenting in the future. I am doubtful whether the possibility of consolidation on preliminary issues and welfare is achievable, but if that be agreed between the parties then so be it.[21]But, for our role in this case, it is enough to allow the appeal. It is hardly necessary to revisit the order below because the order of 29 August 2008 has not recorded the judge’s findings.[22]I would certainly aid the future progress of the case by directing that there must be a directions hearing in the Newcastle Care Centre at the earliest possible date. Whether there should be a direction for expedition thereafter I think is more safely decided by the judge in that court who will hear the directions hearing. That is what I would propose.[23]I agree. I am particularly concerned the judge trivialised the expert evidence concerning the cause of these very serious injuries.[24]I too agree.

Order

Appeal allowed