Public law children case law update November 22

Jaime Turner analyses the latest public law children rulings of interest to practitioners.

Hertfordshire County Council v Mother & Ors [2022] EWFC 106

A Fact-Finding Hearing in care proceedings to establish whether brain injuries to very young baby were non-accidental. The Local Authority sought to withdraw their s.31 CA 1989 application at the conclusion of the evidence. The Mother sought findings that a medical expert failed to be honest and open with the court when preparing his report and did not act with the integrity to be expected of an expert witness. A copy of this decision with no anonymisation was provided to the General Medical Council (GMC).

This is the decision following a fact-finding hearing, on an application by Hertfordshire County Council for Care Orders. This is a single-issue case where the injuries were significant, and the child is likely to have significant motor, cognitive, developmental and psychological sequelae from his injuries. The court was being asked to determine that the injuries were caused because of a minimum of 2 impacts, that they would not have been caused as a result of a simple fall from 4 to 5 feet, and the injuries were caused as a result of a blunt or crushing injury to the child’s head. The court was also asked to consider whether the sustained injuries were inflicted by either of the parents, and that the parents had not provided an accurate account of how the injuries were sustained.

On the evening of Day 1, when the child was 7 weeks old, it was the parents’ case that the father dropped the child, tried to catch the child, but missed, and the child tumbled to the floor. The kitchen floor was a hard wood floor on a concrete base. The child was presented at the accident and emergency department of his local hospital the same evening with a report of having sustained injury in a fall from father’s arms onto a wooden floor from a height which was estimated, by the hospital staff to whom the initial history was given, to be approximately 5 feet. Both parents’ children were made subject to Police Protection Orders on Day 2.

Father provided a recorded account of events to the police on Day 4. The initial view of the medical professionals at GOSH, at a strategy meeting which took place on Day 4, was that the injuries sustained were compatible with the mechanics of a fall, but it could not be confirmed if this was accidental or non-accidental. Dr TM explained it was possible for a single impact to cause bilateral fractures, but she could not rule out a second impact to the left side. On Day 7 the mother was informed the child had sustained permanent brain damage and there were concerns of Non-Accidental Injury (NAI).

Dr G, Consultant Paediatric Neurologist at GOSH, provided a report dated Day 14 at the request of the Local Authority. The report recorded a consensus neuroradiology opinion that the mechanism of fall described by the father was compatible with the radiological findings, which were suggestive of a single high impact direct traumatic injury. However, Dr G also opined “the pattern of injury seen in this child with multiple skull fractures seen on both sides, with associated widening of the sutures, and significant damage to the underlying brain, is highly unusual in the context of the history provided by the parents” and noted “with concern that there are discrepancies in the history provided”.

A strategy discussion took place on 23 February 2021. It recorded the Local Authority s47 investigation as finding “no other risk factors identified beyond highly unusual injury and discrepancy in histories”.

The Local Authority commissioned a report from Dr N, Consultant Neuroradiologist, on 18 March 2021. Dr N summarised his view that “the constellation of imaging abnormalities cannot reasonably be explained by a fall from a height such as being held by an adult. In my view the two main possible explanations for the totality of the abnormalities are that either they are due to a crush injury (as may for example have happened if (the child) did indeed fall onto the floor but his head was then stepped upon by an adult) or an episode of impact head trauma involving an impact injury involving a much greater degree of force than is likely to have occurred as a result of a fall from carrying height.”

Following the issue of proceedings, the court gave permission to the Guardian to obtain a paediatric radiology report from Professor AM. Subsequently, the court refused an application by the Local Authority to obtain an addendum assessment from Dr N and gave permission to obtain a neuroradiological report from Professor Sellar.

Shortly before the fact-finding hearing, the Local Authority served a letter from Dr TM dated 7 March 2022. Included in the letter was the text of a neuroradiology consensus statement which had been shared with the clinical team, which had not appeared in the medical records, which included a discussion between 4 consultant paediatric neuroradiologists of the GOSH Paediatric Neuroradiology Department. The content of the discussion was as follows: Based on the current radiological literature on impact head trauma, we think that the mechanism described (i.e., fall of the child from a height of about 5.5ft while being carried by the father) is compatible with the radiological findings. In fact, a fall from caregiver's arms is more likely to be responsible for complex and more extensive skull fractures and intracranial injuries in comparison to the typical short height accidental fall (uncomplicated fall over a short distance, i.e., maximal 1-1.5 m). These differences are mentioned in the Chapter 2 of the book by Bila et al. on non-accidental fractures in children. Data on falls from caregiver's arms are not extensive but evidence shows that "as a result of such a fall, children may sustain a focal haematoma and even extensive skull fractures and focal contusion of the brain" (Bila et al. 2010).

The fact-finding hearing commenced on 21 March 2022. Following the evidence of Dr G, Dr TM, Professor AM and Professor Sellar, on 25 March 2022 the Local Authority accepted they were unable to establish threshold on the evidence. The Local Authority indicated it wished to seek permission to withdraw the proceedings and the parents and Guardian wished there to be a full decision exonerating the parents.

The withdrawal application: In Lancashire County Council v TP and Others (Permission to Withdraw Care Proceedings) (2019) EWFC 30, it was confirmed that there are two distinct approaches to applications for leave to withdraw public law proceedings. If there is a possibility that the threshold criteria might by crossed, the court must undertake a more detailed evaluation of the situation, exercising discretion by referring to the 9 factors set out by McFarlane J in A County Council v DP, RS, BS (by their Children’s Guardian) (2005) 2 FLR 1031. The conclusion should then be cross checked having regards to the best interests test.

The Local Authority submitted that this was a case where they are unable to satisfy threshold and leave to withdraw must be granted. The Mother asked the court to apply the checklist from A County Council v DP and refuse leave to withdraw. The court concluded that this is clearly a case where threshold might be crossed, given the significant and life-changing injuries sustained by the child and that it was not appropriate to grant leave to withdraw and the LA’s application was dismissed. The parents had made it clear to the court that they sought to criticise the medical professionals involved in this case. In particular, they sought permission to disclose any decision of the court to the General Medical Council and required a full decision to do so [para 24].

The Law and Legal Principles: As Ryder J observed in A County Council v A Mother, A Father and X, Y and Z (by their Guardian) [2005] 2 FLR 129: “A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be. Just as best interests are not defined only by medical or scientific best interests…likewise investigations of fact should have regard to the wide context of social, emotional, ethical and moral factors… I venture to suggest that if a court considers the broader context of expert evidence, that is the social, educational and healthcare history, with the rigour described above, there must surely be less likelihood of inappropriate reliance on what may transpire to be insufficiently cogent and sometimes frankly incorrect expert evidence even where it is uncontradicted” [para 26.11]

It was highlighted that a judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark [Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567, Butler- Sloss P at para23]].

The court also noted that in alleged non-accidental injury cases there is often reference to an analysis from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals in Re BR (Proof of Facts) (2015) EWFC 41 [para 27].

The court was asked to consider allowing publication of the details of the hospital, treating consultants and experts [para 29]. S97 of the Children Act 1989 prohibits publication of any material which is intended or likely to identify (a) any child as being involved in any proceedings before the Family Court…; or (b) an address or school as being that of a child involved in any such proceedings. The leading decision on naming experts is that of Munby LJ in A v Ward [2010] EWHC 16 (Fam) where he quotes from British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam), [2007] 2 FLR 765 [para 32]. The court also noted that the Family Justice Council in its response in November 2006 to the Government's Consultation Paper, Confidence and confidentiality: Improving transparency and privacy in family courts (CP 11/06) (TSO, 2006) recognised, at para 34, that: 'There is likely to be an increasing reluctance on the part of professional and expert witnesses to participate in court proceedings if they are to be subjected to the scrutiny of the media. This could lead to increasing delay in dealing with some family cases.'

Decision: The Local Authority accepted that having heard the evidence of Professor Sellar and Dr G they [para 131]:

• have failed to consider all the evidence that was available to them at the time of their reports and letters;
• were approaching the questions under a false pretence that the parents accounts were inconsistent and failed to take into account the views of the police and other professionals around the plausibility of their accounts.
• do not appear to have necessarily reached an independent opinion on the cause of the injuries, with it appearing that Professor Sellar based much of his opinion on the views of Dr N and Dr G, where Dr G had, for reasons he was unable to explain, changed his opinion from accidental to non-accidental after speaking with the safeguarding team at GOSH.

Reverting to the allegations pursued by the Local Authority the court was able to find as follows [para 133]:

• the court is asked to determine that the injuries were caused as a result of a minimum of 2 impacts – not established.
• that they would not have been caused as a result of a simple fall from 4 to 5 feet - the parents’ case is a complex fall from a slightly greater height with added spin. The mechanism described is not the one the court was asked to consider. The court accepts the mechanism described by the parents could have caused the injuries sustained.
• the injuries were caused as a result of a blunt or crushing injury to the Child’s head – everyone is agreed that this was a complex fall onto a flat, hard surface with downward and rotational force.
• the court is also asked to consider whether the sustained injuries were inflicted by either of the parents - not established; and
• that the parents had not provided an accurate account of how the injuries were sustained – accepted as inaccurate by the Local Authority before the hearing commenced. It is accepted the accounts given by the parents were consistent from the outset.

The court was able to go so far as to say there is no evidence before the court on which the court could make any finding other than that the injuries were caused accidentally, as stated by the parents. In accordance with the binary approach, henceforth it must for all purposes be treated as having been caused by accident [para 134].

The Mother sought findings that Professor Sellar failed to be honest and open with the court when preparing his report and did not act with the integrity to be expected of an expert witness in that he [para 137]:

• Failed to read and consider the child’s medical records and the analysis of the scans but relied on the report on a scan undertaken by the general radiologist at the Watford general hospital when, had he considered the records, he would have seen the reports from the various consultants at GOSH even if he did not have the consensus opinion.
• Failed to follow the letter of instruction asking him to comment on the hospital radiology opinion.
• Gave unsatisfactory evidence as to when he received the medical records and when (if at all) he ever considered them.
• If as he says he was unable to access the records sent to him, failed to ask the guardian for an accessible version of the records before reporting to the court.
• Misrepresented the report of Dr N by giving the impression that Dr N had described the accident as a “stamping” either expressly of by implication when Dr N did no such thing.
• Failed to provide the full Weber paper and misrepresented the research of Weber when he described Weber as supporting the notion that the skulls of the cadavers were dropped headfirst and suffered fractures which crossed the sutures.
• Failed to read and consider the literature provided by the neuroradiologists even before giving his evidence to the court citing that he did not have enough hours in the day and thus was unable to advise the court properly or at all.
• Even when faced with incontrovertible material undermining his opinion failed to take into account such material when giving his evidence but rather raised matters not raised in his report namely the suggestion that soft tissue damage would run the whole length of the fracture line and the fracture would cross the suture in the case of a single impact.
• In his evidence sought to obfuscate so as to conceal the obvious fact that he had been at least careless in the preparation of his report, the experts meeting and the giving of his evidence.

The court was satisfied the observations and findings already made were appropriate and in accordance with the guidance in Re W (A Child). The court did not accept, however, that it was appropriate to make findings of dishonesty against Professor Sellar without at least giving him a further opportunity to be heard on the point. The court considered whether it is appropriate to extend the proceedings further to allow him an opportunity to be heard on the issue and the simple answer is it is not [para 138].

Disclosure: The mother’s position was that regardless of what names (if any) are to appear in the published decision, a copy of the decision with no anonymisation should be provided to the General Medical Council (GMC) and that permission be given for transcripts of the various witness evidence be obtained either at the mother’s or the GMC’s request in due course [para 146]. The court was satisfied it is in the public interest to give permission to the mother to disclose the full judgment to the GMC and, should it be required, to obtain transcripts of the evidence of both witnesses. It was the view of the court that before deciding whether the names of Professor Sellar and Professor AM should be published they should be given the opportunity to be heard on the issue [para 148].

A (A Child : Withdrawal of Treatment: Legal Representation) [2022] EWCA Civ 1221

Successful appeal of a decision not to grant an adjournment to allow the parents of the child to obtain legal representation. The Court concluded that the judge's decision to refuse the adjournment was unfair and must be set aside.

This case concerns a small baby, A, born in April 2022, who is being kept alive on a ventilator after sustaining two devastating injuries to his brain, the first following a series of haemorrhages and the second a hypoxic ischaemic encephalopathy following a cardiac arrest. The medical opinion of the treating clinicians is that there is no hope of any recovery and that he is dying. The clinical judgment is that it is not in his best interests to be kept alive by artificial means any longer. His parents are firmly of the view that treatment should not be withdrawn. The NHS Trust responsible for the hospital where A is being treated therefore applied to the Family Division for orders permitting treatment to be withdrawn.

The hearing of the application took place before Hayden J on 25 August. The parents were present but unrepresented at the hearing. At the outset of the hearing, the judge refused an application by the parents for an adjournment to allow them to be represented and proceeded to hear evidence. On the following day, he delivered a judgment in which he said that "it is impossible to escape the conclusion that treatment is futile, it protracts death rather than promote life". He made an order declaring that it was lawful and in A's best interests for mechanical ventilation to be withdrawn on 28 August and pending withdrawal for other interventions, such as enteral or intravenous antibiotics and cardio-pulmonary resuscitation, to be withheld, in accordance with a care plan appended to the order.

Permission to appeal was refused by the judge and no notice of appeal was filed with this Court for several days. Consequently, the time specified by the judge for withdrawal of ventilation passed without any stay being sought or granted. Knowing that an application for permission to appeal was imminent, however, the hospital did not in fact withdraw ventilation. On 31 August, an appeal notice was filed, and a stay granted immediately by Underhill LJ. On 2 September, a case management hearing took place before Underhill and Baker LJJ at which the case was listed for hearing on 7 September for consideration of the application for permission to appeal with appeal to follow if permission granted.

The appeal notice contained only two grounds, one of which has now been withdrawn. The remaining ground is: "by failing to adjourn the proceedings to allow the proposed appellants to be legally represented, the court breached the proposed appellants' fair trial rights protected by Article 6 ECHR."

No transcript of the hearing on 25 August was available but the court was supplied with notes from two of the legal representatives present. At the outset, the judge refused the application to adjourn. In the course of the hearing, he read and heard evidence from six experts. On the following day, the judgment was handed down at a remote hearing. The judge's original draft judgment omitted to set out his reasons for refusing the parents' adjournment application.

The Law and Legal Principles: Counsel representing the parent’s pro bono on the appeal focused his attention on Article 6 - Right to a fair trial. The Court accepted that the parents' civil rights under Article 6 are engaged and granted permission to appeal on the basis of the "civil limb", however, the court concluded that the parents’ counsel was mistaken in focussing his submissions solely on Article 6, commenting that “he was starting in the wrong place”.

The court noted that the Supreme Court has stressed in recent years that the Human Rights Act 1998 ("HRA") should not normally be treated as the starting point in any case in which human rights issues arise. Although the importance of the Act is "unquestionable", it does not supersede the protection of human rights under the common law or statute, or create a discrete body of law based on the judgments of the European Court of Human Rights: see R (Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115, at paragraphs 54-63, in particular paragraph 57, where Lord Reed said: "Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate." [para 27]

As Lord Reed pointed out at paragraph 55, the guarantee of a fair trial under Article 6 is fulfilled primarily through detailed rules and principles to be found in several areas of domestic law, including the law of evidence and procedure, administrative law, and the law relating to legal aid. The correct approach was summarised by Lord Reed at paragraph 62 as follows:

"… The ordinary approach to the relationship between domestic law and the Convention [has been] described as being that the courts endeavour to apply and if need be develop the common law, and interpret and apply statutory provisions, so as to arrive at a result which is in compliance with the UK's international obligations, the starting point being our own legal principles rather than the judgments of the international court."

The court set out that there are at least two fundamental reasons why procedural fairness is important. The first is that it helps to improve the chances of reaching the right result. In John v Rees [1970] Ch 345, at 402, Megarry J noted that there are some who would say that, when the outcome of a case is obvious, why force everybody to go through the tiresome waste of time involved in framing charges against a person and giving them an opportunity to be heard? Megarry J eloquently answered that question in the following way:

"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."

This leads to the second reason why fairness is important. The last point made by Megarry J in that passage in John v Rees was one also noted by Lord Reed JSC in Osborn, at paragraphs 68-70. When setting out the values which underlie the concept of procedural fairness, Lord Reed pointed out that the purpose of a fair hearing is not only that it improves the chances of reaching the right decision. Those values also include the avoidance of the feelings of resentment which will arise if a person is unable to participate effectively in a decision-making process which affects them. In this way the law seeks to protect the value of human dignity.

Decision: The Court concluded that, in applying the principles of fairness, there were plainly several strong arguments in favour of granting the parents an adjournment of the hearing on 25 August: -

• First, the issue before the court was the gravest and most important matter any parent could ever face - the life and death of a child. Decisions about the medical treatment of a child are normally made by the parents without any involvement of the State. Here, the State through the court was being asked to take this responsibility away from the parents. There is clearly an argument that the State should provide non-means tested public funding for all parents in this situation, as it does for the parents faced with an application to place a child in the care of a local authority under Part IV of the Children Act 1989. But as MacDonald J observed in Barts Health NHS Trust v Raqeeb (Costs) [2019] EWHC 3322 (Fam) at paragraph 52,
  
  "whilst … there is an apparent inconsistency in the approach to public funding as between a parent who is facing care proceedings concerning the welfare of their child brought by the State, in the guise of the local authority, and a parent who is facing proceedings of the instant nature brought by the State, in the guise of an NHS Trust, that is a matter for Parliament and not for the court."
  
  Nonetheless, the importance of the issue to the parents is manifestly a relevant factor to be considered by any judge faced with an application to adjourn the hearing to allow the parents to seek legal representation.
• Secondly, these particular parents had a stronger argument having lost their legal representation only a few days before the hearing through no fault of their own. Some parents may choose to represent themselves from the outset and only decide to seek legal representation at the last minute. Others may instruct lawyers and then withdraw those instructions and seek an adjournment. In those circumstances, there is obviously less merit in the adjournment application. In this case, the parents had wanted to be represented at all times. They initially instructed an experienced and specialist barrister to represent them pro bono. Then they instructed a specialist firm of solicitors who agreed to act on their behalf provided they were publicly funded and acted under their delegated authority while the application for funding was being processed. At the last minute, public funding was refused, and the solicitors withdrew.
• Thirdly, the task they faced in representing themselves was daunting. The preparation and conduct of cross-examination in these cases and the preparation and presentation of legal argument are difficult tasks even for an experienced lawyer. Cases of this sort invariably involve complex medical evidence and usually voluminous medical records. Even a parent who had been involved in the proceedings and was familiar with the evidence and issues would find it very challenging to conduct a hearing when they had not been expecting to do so. And they would be required to do so at a time when their child was lying desperately ill in hospital. In our judgment, the fact that the parents are the subject of a criminal investigation adds nothing to the weight of the argument. But for this couple, who are not native English speakers, such a task would be even more difficult.

The court noted that all these points were arguments in favour of the judge granting a short adjournment and commented that none of them were mentioned in the reasons for his decision. The judge took into account (a) the fact that the proceedings had been going on for a month, (b) the fact that the medical witnesses were in attendance to give evidence, (c) the child's parlous condition, (d) the judge's impression that the parents "broadly accepted the weight of the medical evidence, which permits of little ambiguity and reflects a consensus", (e) the fact that some questions had been put on the parents' behalf to Dr B before the hearing, (f) the fact that other questions reflecting the parents' position were put on behalf of children's guardian during the hearing, and (g) the judge's assessment that the issue was "a conflict between medicine and faith". Lord Justice Baker concluded that most of these arguments seemed to carry little if any weight on the adjournment application.

Lord Justice Baker added that, ultimately, the only argument against an adjournment which should have carried any significant weight was what the judge described as the child's "parlous condition". In the rare case where a judge concludes that a child's condition is so serious that the hearing must proceed, very great care must be taken by the court to ensure that the parents have every opportunity to put their case.

Lord Justice Baker acknowledged that although the decision whether or not to adjourn proceedings is a case management one, in which the first instance judge enjoys a wide discretion, and that an appellate court will be reluctant to interfere with that decision, the question for the appellate court is whether the refusal to adjourn was unfair: see Solanki v Intercity Technology Ltd [2018] EWCA Civ 101, at paragraphs 32-34 (Gloster LJ).

Lord Justice Baker concluded that the judge's decision to refuse the adjournment was unfair and must be set aside, having applied the common law principles of fairness. The court added that, in the circumstances, it is unnecessary to rely separately on Article 6. The key proposition is that expressed by McFarlane LJ (as he then was) in Re G-B (Children) [2013] EWCA Civ 164 at paragraph 49:

"It therefore seems to me that issues such as the one raised in the present case will of necessity be fact specific; it will be necessary to look at all of the elements that were in play before the judge who decided to adjourn or not adjourn a set of proceedings."

Jaime Turner is a pupil barrister at St Mary's Family Law Chambers.