F (A Child), RE [2008] EWCA Civ 218

Case No B4/2007/2044[2008] EWCA Civ 218
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM BIRMINGHAM DISTRICT REGISTRY, FAMILY DIVISION
(MR JUSTICE KIRKWOOD)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 12 th February 2008
Before
LORD JUSTICE WARDLORD JUSTICE WALL
IN THE MATTER OF  F (a Child)
(DAR Transcript of
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Mr S Nuveloni (instructed by Messrs Bailey Wright & Co) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a highly unusual appeal. It arises in this way: a boy, whom I shall identify only by the initial J because it is a case where reporting restrictions should be imposed, was born on 28 June 1996. He is now 11 years old. He was made the subject of a care order by Kirkwood J on 20 October 1999. Kirkwood J had earlier on 5 September 1999 conducted a fact-finding inquiry in those care proceedings. He found, to summarise it, that the appellant, who is J’s mother, had deliberately suffocated two of her children, H on 8 November 1993 and B on 29 May 1998. On 7 September 2005 mother gave birth to another child, M, who was removed from her at birth and became the subject of care proceedings which were heard by Hedley J on 31 January 2007. The issue before Hedley J involved the extent of which he could in those care proceedings rely on the findings made by Kirkwood J. He permitted those matters to be re-opened and he heard evidence not only from some of the medical witnesses who had in fact given evidence to Kirkwood J but other experts, and he came to these conclusions which are set out in a judgment which he handed down in open court, on the strict understanding that the identity of the parties should not be revealed.[2]That judgment has the neutral citation number [2007] EWHC 115 (Fam). In it he concluded at paragraph 75:
“There is no doubt but that the medical expert witnesses constructed a formidable intellectual structure for Kirkwood J’s consideration. Indeed it was the only coherent structure before him. He had no basis upon which he could critically consider is foundations.”
[3]Nonetheless Hedley J, with the benefit of the fresh medical evidence and with the benefit also of observations of the Court of Appeal in the well-known case of Cannings [2004] 1FCR 193, came to a conclusion expressed in paragraph 78 of his judgment:
“In the end I have concluded that the edifice of 1999 and the more modest structure of Dr Y rest upon a foundation of sand not rock.”
[4]He gave four reasons, all of them good ones, for coming to that conclusion. So he, Hedley J, was obliged on the evidence before him to conclude that the cause of death of both H and B is unascertained and unknown. In other words he was exonerating the mother of the charge, the serious charge, that she had killed those two children. I should add parenthetically that the criminal proceedings brought against her after a tortuous progress in the criminal courts resulted eventually in their being stayed, with a direction that they were not to be proceeded with without leave of the Crown Court of the Court of Appeal. Because Hedley J had no power to set aside the findings made by Kirkwood J, it was on his recommendation that the parties seek permission to appeal out of time against Kirkwood J’s order. That is the appeal before us. It goes by consent because all parties, including the guardian, have agreed that this court should indeed set aside the findings of fact made by Kirkwood J on 5 February. We should as a consequence discharge the care order that he made on 20 October in respect of J but on the understanding that proceedings will forthwith be launched to place J in care, it being agreed that for very sad reasons this mother, who appears by her guardian ad litem, the Official Solicitor, is sadly quite unable to care for J or indeed for her young baby, M, and sadly perhaps for any other child that she may have.[5]So by consent of the mother but in the absence of consent by the father of J, we will discharge the care order and set aside the judge’s adverse findings against this mother. Steps will be taken immediately to bring care proceedings and a care order will no doubt be made by consent in those proceedings.

Order

Appeal allowed