Court of Appeal finds material irregularity in childcare proceedings was “of no practical effect”

The Court of Appeal has dismissed an appeal brought by a mother against a fact-finding hearing which found she was the perpetrator of injuries inflicted on her child.

The issue under appeal was whether the failure of the local authority to disclose a viability assessment and associated documents in relation to the paternal grandmother (PGM) meant that the judge's finding in relation to the mother was wrong or unjust.

Outlining the background to the case in E (A Child: Care Proceedings Fact Finding) [2023], Lord Justice William Davis said that the child, E, was born on 20 June 2021. The mother was then aged 21, having met E's father in July 2020 when she was 20 and the father was 30.

The mother had continuing physical and mental health problems. In the later stages of the pregnancy Children's Services of the local authority became involved after the Leaving Care team referred the mother's case to them, outlined Lord Justice William Davis.

The unborn child was placed under a child protection plan. Pursuant to the plan the mother went to live at the home of PGM. The father also lived there. Following the birth of E, the mother continues to live at PGM's home with the father and the new baby, noted the judge.

On the evening of 29 July 2021 the mother and father went out for about 90 minutes. They left E in the care of PGM and the father's niece. “She did not require a feed or a change. On their return the mother and father put E into her nightclothes. No mark was seen at this point”, said Lord Justice William Davis.

He continued: “At around 3.00 a.m. on 30 July 2021, E needed a feed and a change. The father changed E's nappy and prepared a bottle. PGM gave E the bottle after which E was put back in the cot in the bedroom shared by the mother and the father. The mother played no part in those events. E was given another feed at around 6.00 a.m by the mother. By now the father had left for work. PGM left for work between 8.00 and 8.30 a.m.”

The judge said that E's normal routine was that she was changed and got ready for the day at around 9.00 a.m, which the mother was responsible for on the morning of 30 July 2021.

At around 9.15 a.m. the mother sent a photograph of E to the father's mobile phone. This photograph showed red marks around E's left shoulder.

“There followed a series of angry text messages sent by the mother to the father. The mother did not inform any professional of the marks on E until shortly after 10.30 a.m. in a conversation with her social worker”, revealed Lord Justice William Davis.

Later that afternoon E was taken to hospital. The unanimous medical opinion was that the red marks were bruising and that, in the absence of any explanation, the bruising was non-accidental, said the judge.

On 28 March 2023 HH Judge Thain found that E's mother was the perpetrator of injuries inflicted on E on 30 July 2021.

Outlining the course of the proceedings, Lord Justice William Davis said that HH Judge Thain first analysed the medical evidence. He said: “She concluded that, in the absence of any plausible explanation involving accident, this evidence demonstrated that the injuries to E were non-accidental.

Considering the evidence relating to the 29 and 30 July, HH Judge Thain concluded that the 3.00 a.m. feed and E being got ready for the day at around 9.00 a.m. were the two “critical periods”.

“Having reviewed the evidence in no little detail, the judge determined that E had sustained her injuries at the hands of her mother when the mother was in a state of high emotional arousal”, said Lord Justice William Davis.

On the mother’s case the credibility of the father and PGM was in issue.

Lord Justice William Davis said that “Counsel for the father cross-examined PGM in the course of which counsel, in the context of local authority involvement with the mother and E in June 2021, asked:

"And is it fair to say that having never had any social service involvement in your life prior to that, whether in respect of yourself or in respect of your own children, this was all pretty much very new to you. Is that fair?" PGM replied "Yes".

On 14 April 2023 there was a hearing before the judge, approximately two weeks after judgment had been handed down.

Around midway through the hearing, the local authority e-mailed to the judge and to all parties a viability assessment dated 9 October 2021. The assessment (“VA1”) had been carried out by two social workers from the local authority in relation to PGM.

Lord Justice William Davis noted that PGM had been assessed with a view to her becoming a special guardian for E. The assessment was negative, and “had not been disclosed prior to 14 April 2023”.

The judge then ordered the local authority to carry out a full special guardianship assessment in relation to PGM.

On 18 April 2023 a second version of the negative viability assessment (VA2) of PGM was included in the bundle which was served by the local authority within the continuing care proceedings. It was the same as VA1 but with amendments as requested by PGM, noted Lord Justice William Davis.

The amendments related to PGM's childhood and to the father's childhood.

On 8 May 2023, PGM requested further amendments. This led to a third version of the negative viability assessment (VA3).

Lord Justice William Davis said that at the same time as PGM submitted VA3 to the local authority social workers, “she informed the local authority that she was withdrawing from the special guardianship assessment process”.

VA1 described PGM's childhood as follows: "…from the time she was aged about nine until she was around fifteen, she and her (eight) siblings were looked after children by the local authority….as children she remembers that the sibling group were in and out of care of the local authority.”

Lord Justice William Davis noted that “the amendment requested and incorporated in VA2 was to state that the social care system was not as advanced then as it is now and that PGM and her siblings were popped into care when the mother felt she needed a break and then given back when she requested.”

VA1 also set out PGM's account of the father's childhood. When the father was six or seven, he had disclosed that his father had sexually assaulted him, it was revealed.

The Court of Appeal judge said: “The italicised amendment set out in VA2 as requested by the PGM consisted of a lengthy passage setting out a detailed history of events around the time of the sexual assaults including the fact that the father had received counselling from CAMHS.

“VA3 did not involve any significant change from what had been in VA2. PGM stated that there had been no social services involvement with her children and that they did not have social workers. She had been supported by staff at the refuge to which she had gone on leaving her first husband around 1980. She also said that the father had not had a social worker at the time of his complaints of sexual assaults.”

Turning to the grounds of appeal, Lord Justice William Davis said the original grounds of appeal were dated 25 April 2023. On 19 May 2023 an application was made to amend the grounds of appeal to add additional grounds.

He said: “It was now said that the failure of the local authority to disclose VA1 in advance of the fact-finding hearing rendered the hearing unfair. The mother had been denied the opportunity to rely on the matters contained in VA1 in cross-examination of PGM.

“Also the local authority had failed to challenge the oral evidence of PGM when she agreed with the proposition put to her by counsel for the father. Moreover, the local authority had relied on the mother's childhood history and fragile mental health yet they had not referred to issues in relation to the father's and/or PGM's early life.

“Finally, it was argued that the judge's decision was based on a material error of fact as to the relevant background factors of the father and PGM.”

Lady Justice King granted the mother limited permission to appeal. Permission was granted solely in relation to the judge's finding that the mother caused the injuries, that being parasitic upon the failure of the local authority to disclose VA1.

Outlining the submissions on appeal, Lord Justice William Davis said “Ms Briggs submitted that the serious material irregularity marred the fact finding hearing. It meant that the judge's finding that the mother was the perpetrator was wrong or unjust. The mother was deprived of the opportunity to advance her case of dishonesty on the part of the father and PGM. Further, she was deprived of ammunition to support her case that the father and PGM colluded to cover up what had happened to E.”

He added: “On behalf of the local authority it was accepted that VA1 should have been disclosed. The existence of the assessment was known to all parties because reference was made to it in directions given prior to the fact finding hearing conducted by the judge but it was acknowledged that this did not cure the irregularity.

Nonetheless, the irregularity did not materially affect the judge's decision.”

Discussing the grounds, the Court of Appeal judge noted that a proper assessment of whether the failure to disclose VA1 and VA2 led to injustice requires “close analysis of the judgment handed down on 28 March 2023”.

He said: “After a preliminary recitation of the relevant legal principles, the judge set out her assessment of the witnesses.”

“The judge noted the mother's issues with mental and physical health including emotional dysregulation. On the other hand the judge was struck by the mother's completely negative attitude towards the paternal side of E's family. She also was troubled by the mother's reluctance to accept aggressive and abusive behaviour on her part to others even when there was undeniable evidence of such behaviour.

“As for the father, the judge found him to be a calmer and more measured witness than the mother.”

He continued: “In relation to PGM, the judge found her evidence clear and considered. She had a good recall of dates and events by reference to her diary. The judge did observe that she had to consider whether any part of PGM's evidence had been influenced by loyalty to her son.”

He noted that the judge set out in “close detail” the events in the 12 hours or so prior to 9.15 a.m. on 30 July 2021 when the mother sent a photograph of marks on E and what happened over the course of that day thereafter up to around 6.00 p.m. The evidence came from the text messages sent and received by the mother and from social workers who became involved during the day.

Lord Justice William Davis said: “In particular, a text message was sent at 9.04 a.m. by PGM to the mother which said "…if you want to see your friends I would prefer it if you went to them I don't want people in when I am at work, can you get on to the council about we're your going to live thanks".”

The judge moved on to explain her findings of fact in relation to the events of 30 July 2021, said the Court of Appeal judge.

He said: “Passing over the feed at 6.00 a.m, the judge moved to the events just after 9.00 a.m. When the mother was changing E and getting her ready for the day, she received the text message from PGM. The judge was satisfied that the mother saw the message as soon as it was sent. She further concluded that the content of the message caused the mother to have an emotional reaction of the kind to which she was prone.

“The most likely scenario was that the mother had an extreme and uncontrolled emotional reaction. In a state of high emotional arousal she inflicted the injuries on E.”

Looking at how HH Judge Thain reached her conclusions, Lord Justice William Davis said “it is apparent from this analysis of the judgment that the judge derived only limited assistance from her overall assessment of the witnesses when reaching significant findings of fact”.

He added: “In relation to the incidents prior to 30 July 2021 the judge made findings adverse to the mother solely by reference to her analysis of the circumstances surrounding those incidents. The judge did consider the background of the mother and the father when considering the nature of their relationship and whether it was abusive.”

He noted that if the local authority had disclosed VA1 and VA2, counsel for the mother would have been in a position to cross-examine the father about what he had told Dr Ward and Dionne Hipkiss about his childhood.

However, he said: “I shall assume for the purposes of the appeal that the father would have accepted that he had lied to those professionals. I do not consider that those lies would have been regarded as relating to a significant issue.”

He added that it could be argued that PGM also concealed from Dionne Hipkiss that the father had been sexually abused as a child.

He said: “What she was reported as saying was not unambiguous. She said that the father did not have a poor childhood "which impacts on him now". For the purpose of this argument I shall begin with the assumption that the judge would have concluded that this was a lie. The issue then is twofold. First, to what significant issue was the lie relevant? Second, does it provide the mother with support for her case that there has been collusion between PGM and the father? In relation to the evidence of PGM the lie was relevant to no significant issue. It is just arguable that the lie demonstrated a willingness to lie to assist the father i.e. to keep secret that which had happened to him over twenty years ago. That is a far cry from PGM being willing to lie to protect the father in relation to injuries to E.”

Dismissing the appeal, Lord Justice William Davis concluded that the material irregularity which occurred was of “no practical effect”.

He said: “Had VA1 and VA2 been available to those representing the mother, they may have had additional material on which to cross-examine. The effect of such cross-examination even put at its highest would have been negligible. It certainly would not have affected the judge's finding about the identity of the perpetrator of the injuries to E.”

Lord Justice Baker and Lord Justice Peter Jackson agreed.