WALL J: On 13 February 1998, after a hearing in chambers, I made care orders in favour of a local authority in relation to twins, CB and JB, born on 7 February 1996 and so 2 years old. CB is a girl; JB is a boy. I also made a supervision order in favour of the same local authority relating to the twins' half-brother SS, who was born on 28 August 1991, and so is now 6.
The parties to the proceedings were AMS, the mother of the three children, and PB, the father of the twins. SS's father, one PG, played no part in the proceedings. The mother had a fourth and eldest child, a girl called KS, born on 17 December 1988 and so now aged 9. KS lives with her maternal grandmother, Mrs S, whose home is very close to that of the mother. KS thus sees her mother on a daily basis, and was not the subject of the proceedings. CB, JB and SS were all represented in the proceedings by a guardian ad litem.
The need for a supervision order in relation to SS was on the evidence overwhelming and the order was agreed by the mother during the course of the hearing. So far as the supervision order in relation to SS is concerned, neither the basis upon which the threshold criteria were satisfied nor the reasons for making it is material to this judgment. SS lives with his mother, and the supervision order was designed to secure that placement rather than alter it.
The facts of the case are very simple. CB was the victim of at least two shaking episodes whilst living in the care of her parents. The medical evidence to this effect was unanimous as to causation and unequivocal as to timing. The first episode had occurred within a maximum of 24 hours of, and probably some 2 hours prior, to a 999 call made by the mother at 9.36 am on the morning of 1 October 1996, which led to CB's admission to hospital at 9.59 am on that day. The second had occurred within a maximum of 2 hours before the child's admission to hospital at 3.29 pm on the afternoon of 12 November 1996, following a 999 call by the mother at 3.00 pm on that day. Moreover, the parents were the only candidates for the role of perpetrator.
Both parents denied shaking the child. Accordingly, the only factual issue in the case was whether or not it was possible to make a finding of fact as to which parent had inflicted the injuries, applying the standard of proof laid down by the majority of the House of Lords in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 1 FLR 80 (which I will call henceforth the 'Re H standard').
On the evidence available to me, I was unable to find which of the parents had shaken CB on the first occasion: however, the evidence was overwhelming that the mother had been alone with the child throughout the relevant period on the second occasion and that on this occasion it was she who had shaken the child. I so found. That finding was determinative of the case. By the time of the hearing before me, the father was in prison, serving 6 years for domestic burglaries committed during the period of the proceedings but otherwise unrelated to the case. The mother continued throughout the hearing to deny that she had shaken CB. Quite apart from the evidence relating to her parenting skills, therefore, there was no question, on the facts of the case, of either child being returned to her care.
Care orders in relation to both children were thus inevitable. The local authority had issued applications to free both children for adoption. Without objection from the parents' lawyers those proceedings were listed concurrently with the care proceedings. Having made care orders, I dealt with the freeing applications. The father did not have parental responsibility for the twins. I therefore dispensed with the mother's agreement on the basis that it was being unreasonably withheld, and freed both children for adoption.
Against this very simple background it came as a considerable surprise to me when I saw the case for the first time at the pre-hearing review in January 1998, that the documentation ran to three large and bulging ring binders; that both parents were represented by leading counsel (although leading counsel for the father was in the event detained by an overrunning criminal trial, and the case was conducted, very competently, by his junior); that in relation to the purely medical issue there were statements and reports from no less than three consultant paediatricians, a professor of paediatric radiology, a paediatric neurosurgeon, a consultant paediatric neurologist and a consultant ophthalmic surgeon; that on the psychiatric/psychological side there were reports from two consultant clinical psychologists, a consultant forensic psychologist, a chartered psychologist, three reports from an adult forensic psychiatrist, and a report from a consultant child and adolescent psychiatrist.
There were thus in total in this case no less than 13 expert witnesses, all of whom had written reports, sometimes more than one. In addition, there had been three 'experts' meetings'. As this judgment will demonstrate, it was my view that the psychological/psychiatric evidence was irrelevant to the case and should have been neither proposed by the parties nor permitted by the court.
My complaint about the purely medical evidence is different. Of the doctors, three (two consultant paediatricians and a consultant paediatric neurologist, Drs M, JW and JL) were engaged in CB's treatment. Of the remainder, the professor of paediatric radiology (Professor Helen Carty) and another consultant paediatrician (Dr John Sills) were instructed at an early stage by the guardian ad litem in order to obtain an independent opinion of CB's injuries. That was a legitimate exercise of the guardian ad litem's functions and the court's powers. The consultant paediatric neurosurgeon (Mr Peter Richards) was instructed late in the case by the mother's advisers to provide a second opinion in the hope that if he agreed with the other doctors (as indeed he did) that the injuries were non-accidental, the mother would accept the fact.
Finally, the consultant ophthalmic surgeon (Mr John Elston) was consulted by the mother's advisers at a very late stage in the proceedings. This arose, I was told, because when leading and junior counsel for the mother saw Mr Richards in consultation on 2 December 1997 they raised with him the question of the retinal haemorrhages which had been observed following CB's admission to hospital on 12 November 1996. Counsel considered, rightly, that dating the retinal haemorrhages could have a bearing on the timing of the second injury. The available evidence was that the consultant neuroradiologist who had conducted an MRI scan on 13 November 1996 had recorded his understanding that CB had 'florid bilateral fresh retinal haemorrhages'. Unfortunately, the clinical note in the medical records relating to the haemorrhages was illegible. Mr Richards, I was told, advised that he did not have the necessary expertise to deal with the dating of the retinal haemorrhages but advised that Mr Elston did. Mr Elston was, accordingly, instructed to advise on the point, and did so.
It is, therefore, possible to see how it was that all seven medical doctors came to make statements in the case. I will deal in particular with the mother's instruction of Mr Richards at a later point in this judgment. My complaint about the medical evidence is fourfold:
(1) despite the fact that there was no point of disagreement of any substance between any of the seven doctors, final acceptance by the mother's advisers that this was so was only achieved on the third day of the hearing before me;
(2) that part of the medical evidence, particularly the important reports of Mr Richards and Mr Elston, were obtained far too late;
(3) that the legal profession had not worked, as it should have done, towards clarifying and simplifying the issues and establishing whether or not there was a consensus between the doctors as to a time-frame for the injuries; and
(4) despite the fact that they were in agreement, all seven of the medical specialists were timetabled to give oral evidence in the case, and even when, as I shall relate, the doctors confirmed their unanimity in answer to specific questions dictated by me and faxed to them on the second day of the hearing, leading counsel for the mother renewed her application to cross-examine all seven, for the purpose, as I understood it, of exploring still further the already narrow and closely defined time-frame which the doctors had given for the infliction of the injuries.
As to the psychiatric/psychological evidence, I had made it clear, when I saw the case for the first time at the pre-hearing review in January 1998, that I was not willing to admit a blanket volume of psychiatric and psychological evidence going to propensity and psychological methodology in a case which seemed to me to turn exclusively on a simple issue of fact. I therefore at that stage excluded the evidence of all the psychologists and psychiatrists bar two. The first was a psychologist (RH) who had made the initial psychological assessment of the mother; the second (SM) had conducted sessions with the mother during the summer of 1997 designed to help her accept the fact that the injuries to CB were non-accidental (something which the mother, notwithstanding a concession made in court on 9 April 1997, continued to dispute).
Both RH and SM were decent and serious professionals, but their evidence was not relevant to the critical issue in the case. Both had been instructed on behalf of the mother. RH gave evidence as to propensity. She gave it as her professional opinion that the mother was unlikely to have committed the injuries because she had such an open and direct manner of communicating that in the period between the injuries and hearing she would have been bound to have admitted the fact. I will deal with the relevance and admissibility of that opinion, which the psychologist qualified and I in any event rejected, later in this judgment.
The evidence of SM was more helpful, although she had been instructed at the wrong time and with the wrong brief. In the event, however, her evidence to me - in cross-examination by counsel for the local authority - was that whatever the factual truth, rehabilitation of the twins to the mother's care was impossible. In my judgment all the remaining psychiatric and psychological evidence was irrelevant and leave to obtain it should not have been granted.
Even with the medical evidence agreed and the psychological evidence severely curtailed, the hearing before me was estimated to last 9 working days and in fact lasted 7. The first afternoon was taken up by the mother's application to cross-examine all seven medical witnesses. This led to a series of questions drafted by me being sent by fax to all seven medical doctors on the second day of the hearing. A telephone conference took place the same evening between six of them and confirmation arrived on the following day that all seven were in agreement. Two days were taken up with evidence from local authority witnesses which, while interesting, did not go to the critical issue. The remaining time was spent hearing the parents, Mrs S, RH, SM and the guardian ad litem.
Care proceedings had been instituted on 26 November 1996, when the twins were 9 months old: they were 2 at the date of the hearing. Throughout that period they had been in foster care. A delay of such magnitude in deciding the future of such children is unacceptable, and should not have occurred.
The district judge who gave the first directions in the case on its transfer from the family proceedings court was of the opinion that there should be a 'split' hearing, following the procedure approved in Re S (Care Proceedings: Split Hearing) [1996] 2 FLR 773. In this, in my judgment, he was plainly right. He gave directions, accordingly, designed to achieve a speedy hearing of what even at this stage was properly perceived to be the critical issue of fact in the case: who shook the baby?
Had those directions been obeyed, and had the lawyers in general and the guardian ad litem in particular focused, as they should have done, on the principal issue, the case would have been concluded in the county court either in April 1997, or at the latest in May or June 1997. However, the directions were not obeyed and, as I shall demonstrate, the case was allowed to expand in a quite inappropriate way. The result was obfuscation of the central issue, delay, waste of valuable social work resources and an enormous and unnecessary escalation in the cost of the proceedings.
It is, of course, inevitable that mistakes will be made when the court is seeking to develop innovative methods for dealing with difficult care cases. This, however, is not a difficult care case. It is a very simple case that has gone badly wrong. I have therefore adjourned into open court in the hope it will assist the profession if I look carefully at the case to see how and why it went wrong.
Before I address the particular issues in the case I think it only fair to note, as counsel appearing before me for the parents pointed out to me, that junior counsel for the father was first instructed on 5 August 1997, immediately prior to her departure on holiday, and was thus not able to address her mind properly to the case until early September 1997. Leading counsel for the father was not instructed until 29 October 1997. Junior counsel for the mother was first instructed on 20 June 1997 and advised on 1 July 1997 that it was appropriate to instruct leading counsel; leading counsel for the mother was first instructed on 17 July 1997.
As the chronology of the case makes clear, the case was off track by the time counsel for the parents who appeared before me were instructed. I will return to this point when I come to consider later in this judgment the need for judicial continuity and continuity of legal advisers.
Questions raised by the case
The case raises eleven particular questions. I propose to itemise them, and give my conclusions about each. I will then deal with the different aspects of the case which gave rise to each question.
Question 1
(a) Why did the split hearing for which the district judge gave directions, for which he laid down a sensible and realistic timetable and for which the case was pre-eminently suited, not take place?
(b) When a split hearing is ordered in relation to an issue of fact which goes to the threshold criteria under s 31 of the Children Act 1989, is it normally sensible to permit a psychiatric or psychological assessment of the parties to be undertaken at the first stage? Equally, should evidence of propensity or character be admitted at the first stage, or, indeed, at all?
The answers to both parts of this question are interrelated. The short answer to the first part of the question is that both the parties and the court allowed themselves to be diverted away from the simple issue of fact into addressing issues which were irrelevant to it. In particular, the guardian ad litem sought to introduce into the factual inquiry a psychiatric assessment of the father. This led inexorably to the introduction of a psychological assessment of the mother, evidence from psychologists as to propensity and then, quite inappropriately to a sterile and irrelevant argument about psychiatric and psychological methodology. The result was inordinate delay and the abandonment of the split hearing - that is up until the commencement of the final hearing before me when the one issue in the case reasserted itself.
The lessons to be learned from this part of the case are, in my judgment, the following:
(i) Where the court (as here) decides that a factual issue or factual issues in a case are critical to the establishment of the threshold criteria under s 31 of the Children Act 1989, and that the case is thus suitable for a split hearing, both the parties and the court should at all times maintain their focus on the factual issue or issues and not allow themselves to be diverted from them without very good reason.
(ii) The essence of a split hearing is the clear identification of the issue to be tried first. The parties and the court must concentrate their energies upon assembling the evidence which will enable that issue to be tried. Tight directions must be given and the case timetabled to ensure that the factual issue is heard speedily.
(iii) It is essential in a split hearing not only that all the parties should keep their eye firmly on the ball, but that the timetable laid down by the court is strictly adhered to.
(iv) Evidence which is relevant to the assessment of the parents or other family members if and when the threshold criteria are established should not be permitted unless for some reason it is of direct relevance to the factual issue being tried. It is the essence of a split hearing that assessments of the parties and their capacity to parent their children need to be carried out on the basis of the facts found by the court. Ex hypothesi that can only be done after the court has decided both that the threshold criteria have been satisfied and the factual basis upon which they have been satisfied.
(v) Evidence of propensity or a psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in resolving a
purely factual issue. There will in any event be before the court evidence from the local authority and the parents relating to the history of the case and the backgrounds of each of the parents. A psychologist or psychiatrist instructed to undertake an assessment of a parent for the first stage of a split hearing is unlikely to have a complete knowledge of the facts.
(vi) Furthermore, such a witness may, as here, express opinions as to propensity or as to responsibility for a child's injuries which are both prejudicial and wrong. The assessment of adult credibility as to the responsibility for a child's injuries (often the critical factual issue) remains the function of the judge. In my judgment, therefore, a psychiatric or psychological assessment of the parties should not be permitted at the first stage of a split trial unless the particular facts of the case demonstrate that such evidence is or is likely to be directly relevant to the factual issue to be tried.
(vii) Expert evidence as to the assessment of risk once the threshold criteria have been established is, of course, another matter. But the essence of such an assessment is that the psychiatrist or psychologist makes his or her assessment on the basis of facts found by the court and parental reaction to them.
(viii) It may be appropriate when timetabling a split hearing, to put in place a timetable for the second stage of the hearing which will take place if the threshold criteria are established. It may well be sensible to give a party leave prior to the hearing of the first stage to show the papers to the psychiatrist or psychologist if and when the threshold criteria are established, in order to save time and enable the party in question to pencil in appointments and establish a timetable for such an assessment. But the purpose of any such direction is simply to ensure that time is not wasted and that the parties do not have to wait until findings are made by the court before putting in place the structure which will enable the second stage of the hearing to take place as quickly as possible: it is not to facilitate inappropriate psychiatric or psychological evidence being given at the first stage.
(ix) Clearly, the local authority social workers will have been working with and observing the child's parents and family members from the moment the child is received into its care. Nothing in what I have said above is designed to inhibit the local authority from putting in at the first stage factual evidence relating to the history of the case and the background of the parties, or relevant evidence of observation. Such evidence is usually necessary for a proper understanding of the case. Equally, the local authority will, as the case progresses, be carrying out a continuous assessment of the parents and their behaviour. However, there can be no full assessment of the parents by the local authority in a split hearing case until the court has made its primary findings of fact and the basis upon which the threshold criteria have been established is known through findings of fact made by the court.
In the instant case, the adult forensic psychiatrist instructed by the guardian ad litem, Dr PW, expressed views about the propensity of the father to injure children which, in my judgment, he should not have made and which were not borne out by the evidence. RH, a consultant clinical psychologist, expressed an opinion as to propensity which wrongly exculpated the mother. In addition to this misleading and unhelpful evidence, the effect of the respective reports was, as I have already indicated, to provoke serial applications for further psychological and psychiatric opinions, with the consequences I have already described.
Question 2
Is it an appropriate application of the principles laid down in Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195 for expert psychiatric or psychological evidence to be adduced as to the propensity of a parent to injure a child or as to the likelihood of a parent having done so?
In my judgment, the short answer to this question is usually 'no', and almost certainly 'no', where, as indicated in answer to question 1 above, the court is dealing with an issue of fact in a split hearing upon which the threshold criteria depend. 'Never' is a difficult word to say in the Family Division, but I do not believe it was the intention of the Court of Appeal in Re M and R (Child Abuse: Evidence) (above) that evidence as to adult credibility or propensity to commit acts of physical abuse should be routinely given by psychologists or psychiatrists and be routinely admissible as probative of the factual issue as to whether or not a particular parent perpetrated a particular act of abuse.
In Re M and R (Child Abuse: Evidence) the Court of Appeal, commenting on my rejection in another case of the argument that previous decisions of the Court of Appeal on the point were per incuriam because of the terms of s 3(3) of the Civil Evidence Act 1972, said this (at 210H):
'But while Wall J was wrong in his construction of s 3, we have no reason to believe that he was wrong in holding the doctor's evidence on the credibility of two women giving evidence of abuse of them when they were children dealt with an issue that did not require her expertise. The evidence was inadmissible because irrelevant, not because it went to the ultimate issue in the case.'
I accordingly agree with a submission made by the father at an interlocutory stage of the case in the following terms:
'Although Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195 establishes that expert evidence may be admissible, if relevant, in respect of the ultimate issue, it is submitted that the underlying rationale for the use of expert evidence should be kept firmly in focus - viz to assist the court in drawing inferences and conclusions where the tribunal of fact does not possess the necessary expertise to carry out that task …
[RH's evidence] … is in essence evidence of credibility. It is submitted that it is inadmissible not because it goes to one of the ultimate issues in the case (viz did the mother inflict one or other of the injuries) but because it is irrelevant and unnecessary.
It is irrelevant and unnecessary because the court has the expertise, experience and knowledge to assess credibility.'
In this case, I ruled most of the psychiatric and psychological evidence irrelevant and thus inadmissible on this basis. The evidence I admitted as to the propensity of the mother to perpetrate the abuse on CB (or, more accurately, to the effect that she had not shaken CB) was, as I have stated, flawed and, as I found, plainly wrong.
Question 3
Where:
(a) parents have two children;
(b) one child has been non-accidentally injured in the care of her parents and the other has not been injured;
(c) there is no other possible perpetrator, but
(d) the court is unable on the Re H standard to decide which parent inflicted the injuries;
can it be argued either (i) that the threshold criteria are not met in relation to the uninjured child, alternatively (ii) that where one parent is off the scene (as here, where the father is in prison) both children can properly be returned to the other parent, because there is no factual basis upon which it can be said that either child is at risk of harm in the future?
The answer to both parts of this question, in my judgment, is an emphatic 'no'. The argument to the contrary, in my judgment, is based on a misunderstanding of Re H and R (Child Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 1 FLR 80 and Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195. Furthermore, it strikes at the whole philosophy of child protection embodied in the Children Act 1989 and seeks to import into care proceedings the unsatisfactory rule of criminal law that if a jury cannot decide which of two people is responsible for the death of a child, or serious injury to a child, each is entitled to an acquittal.
In the event, of course, my finding of fact (applying the Re H standard) that the mother had shaken CB on the second of the two occasions led to an acceptance by counsel on behalf of the mother that the threshold criteria were met in relation to both CB and JB. It also meant that the submission made by leading counsel for the mother (which was not supported by any other counsel in the case) that, in the absence of a finding as to which parent injured CB, there was no proper basis to assess future risk to CB and JB, did not strictly fall to be decided. However, I dealt with the point in my chambers judgment, and deal with it again here (albeit, as I accept, obiter) in the hope that it will not be repeated or gain currency elsewhere.
In the opening skeleton argument of leading and junior counsel for the mother the following argument is advanced:
'As to the issues of the factors to be considered if the threshold is satisfied, it will be submitted that in the event that it is not proved that the mother caused the injuries to CB, there would remain at most only a suspicion that she did so which the court could not put in the balance under s 1(3) of the Children Act 1989 when determining the appropriate order, if any, to make: Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195. The argument is frequently advanced that although identity cannot be proved, there is a relevant risk because both possible perpetrators are on the scene. This argument cannot be advanced in this case because the fact that the father is absent for the foreseeable future (because of imprisonment) and in the longer term (because the mother considers the relationship ended).'
In their closing submissions, counsel for the mother argued as follows:
'In the event that the court cannot make a finding as to which parent caused CB's injuries, the facts are not sufficient for a finding of likelihood. The fact that CB was injured in the care of her parents can be proved but is not enough on its own. The added dimension required - that it was the mother who was responsible - is not a fact but a suspicion, no more than a disputed allegation that has not be proved on the balance of probability. It cannot therefore enter into the court's consideration of whether harm to JB is likely. To take it into account would effectively reverse the burden of proof … requiring the mother to disprove the allegation that she shook CB if she is to avoid a finding of likely future harm. It is recognised that this legal position may lead to disquiet …'
In amplification of the final sentence cited from their argument counsel frankly acknowledged that if their submission was correct, there is no answer to the question which I posed during the course of argument: 'What about child protection?' However, they submit that their argument is the logical consequence of the decision of the House of Lords in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 1 FLR 80 and of the Court of Appeal in Re M and R (Child Abuse: Evidence), and if this means that the court cannot protect the child, that is an unavoidable corner into which Parliament and the courts have boxed themselves.
In my judgment the argument advanced is unsound for a number of reasons. I deal first with the proposition that in the circumstances described the threshold criteria are not met in relation to either child. This question must clearly be approached by considering s 31(2) of the Children Act 1989, which is in these terms:
'A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control.'
CB has undoubtedly suffered significant harm. Assuming for the purposes of the present case that I had been unable to find as a fact which of her parents inflicted her injuries, the fact remains that the injuries were inflicted upon her by one or other or both of her parents whilst she was living in their care. The harm she suffered was, therefore, attributable to the care, or lack of it, which she had received whilst living with her parents. That care was plainly not that which it would be reasonable to expect either parent to give to her. So the threshold criteria are plainly met in relation to CB.
Furthermore, in my judgment, there must be a likelihood of JB suffering significant harm, if his twin sister has actually suffered significant harm in the form of life-threatening, non-accidental injuries at the hand of one or both of her parents. Lord Nicholls, in Re H and R (Child Sexual Abuse: Standard of Proof), made it clear that 'likely' in the context of s 31(2) does not mean more probable than not: it is used in the sense of 'a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case': see [1996] 1 FLR 80, 95D. CB has suffered life-threatening, non-accidental injuries at the hands of one or both of her parents; there must therefore, in my judgment, be a possibility which cannot sensibly be ignored that if JB were left in the care of his parents - or either of them - he too will suffer significant harm.
Accordingly, in my judgment, a finding of fact that a child in CB's position has been non-accidentally injured by one or both of her parents whilst she was in their joint care is sufficient to satisfy the threshold criteria under s 31(2) of the Children Act 1989 in relation to both children, notwithstanding the fact that only one has suffered non-accidental injury and that on the available evidence the court cannot be satisfied on the balance of probabilities that it was one parent rather than the other who inflicted those injuries. To hold otherwise would in my judgment not only be illogical, but would render the statutory provisions ineffective to deal with a commonplace aspect of child protection.
If the threshold criteria are met by such a finding, the question then becomes whether or not a care order is more in the child's interests than to make no order. This is a welfare question, in which the paramountcy of welfare test under s 1(1) of the Act applies. The court thus has to take into account the matters listed in the welfare checklist under s 1(3)(e).
In Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195 the Court of Appeal decided that in order to make an assessment of 'any harm which the child … is at risk of suffering' under s 1(3)(e) of the Children Act 1989 the court must base its assessment of the risk of harm upon findings of fact made on the balance of probabilities - or to put the matter in a slightly different way - that the assessment of risk under s 1(3)(e) has to follow a similar pattern to the assessment of the likelihood of harm under s 31(2). There have to be findings of fact on the balance of probabilities sufficient to provide a foundation for the assessment of risk.
Re M and R (Child Abuse: Evidence) was an unusual case in this context because the judge was not satisfied that the children had been sexually abused. However, he was satisfied that the threshold criteria were established on other grounds. The question thus became: could he take into account under s 1(3)(e) of the Children Act 1989 the risk that the children might suffer sexual abuse in the future, when he had not found it proved on the balance of probabilities in the past? Both the judge and the Court of Appeal answered that question in the negative. If the risk of future sexual abuse was based on what happened in the past, the risk could not be said to exist if sexual abuse in the past had not been established.
In the instant case, it seems to me that if it is legitimate to find a likelihood of significant harm to JB on the basis of a finding a fact that CB was injured by one of her parents, then it must follow that JB is at risk of harm in the future from non-accidental injury from either parent. In other words, the satisfaction of the threshold criteria puts paid to any argument under s 1(3)(e) since both have the same factual basis.
For present purposes, however, I am content to assume that I am wrong about that, and that the only fact upon which the risk of future harm to either child can be assessed is a finding of fact that CB's injuries were inflicted by one or other or both of her parents.
In my judgment, the absence of a finding that it was one parent rather than the other does not eliminate the risk if one of the parents is forcibly removed from the scene (as here) and the child is left with the other parent. The finding of fact is that the child was injured by either or both of her parents. The risk to the child from each parent must therefore be substantial.
In my judgment the fallacy in counsel's argument as set out above is twofold. First, the absence of a positive finding that it was the mother rather than the father who caused the injuries does not equate to a finding that the case against the mother is not proven. On this argument it would have to be asserted that the case against the father is not proven either. Does this mean that the child is not at risk from either parent? Clearly not. A finding that it must have been either father or mother means, in my judgment, that the child is at risk from both.
Secondly, the suggestion that the removal of the father from the scene eliminates the risk is plainly fallacious. If the court cannot tell which parent it was, and if it is the case that the mother is as likely as the father to have inflicted the injuries, the removal of the father cannot eliminate the risk.
As I have already indicated, counsel's argument seems to me equivalent to importing into care proceedings the principle of criminal law by which if two parents are accused of the serious injury or murder of a child in their care, but a jury cannot be satisfied beyond reasonable doubt which parent struck the blow which killed or injured the child, then each is entitled to be acquitted. Whilst there are many who find the criminal law in this respect unsatisfactory, there is clearly a logical basis for it. Criminal law is concerned with punishment for criminal behaviour. A person can only be punished if found guilty beyond reasonable doubt of the crime of which he is accused.
Care proceedings are concerned with child protection. You cannot protect a child by exposing him to risk. Assessment of risk has to be based on findings of fact sufficient to give rise to the risk. A finding of fact that a child has been injured by one of his two parents and that each is as likely to have done it as the other means that he is at risk from each. In these circumstances, you clearly cannot protect a child from risk by leaving him with one parent.
As was made clear by Lord Nicholls in his speech for the majority in Re H and R (Child Sexual Abuse: Standard of Proof), the facts upon which such an assessment of risk can be made are infinite. Furthermore, Lord Nicholls acknowledged that there are cases in which it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is likelihood he will do so in the future: see [1996] 1 FLR 80, 101D-E.
Furthermore, in a case such as the present, it will be likely that whichever parent inflicted the injuries, the other failed to protect the child. Thus, in the instant case, had I found the father has shaken CB there was evidence that the mother had failed to protect her and would be likely to fail to protect both children in the future; equally, had I found the mother responsible for both episodes, and had the father been in a position to care for the children, there was abundant evidence that he had failed to protect CB, and would be likewise unable to protect JB.
Finally, of course, in such a situation the reality frequently is that the parent who has not injured the child knows full well that the other has done so and is not telling the court: equally clearly, the person who has in fact injured the child is not telling the court the truth about what happened.
Question 4
The draft letter of instruction to jointly instructed experts contained in the Children Act Advisory Committee Annual Report for 1994/95 and reproduced in the Family Court Practice (Family Law, 1997) at p 2325 contains the following sentence:
'While, of course, it is expected that you will have meetings with the parents, children (where leave is given), social workers and guardian ad litem, nevertheless it is essential both to your role as an independent expert and to the parties' perception of your independent status, that there are no informal unrecorded (my emphasis) discussions, or correspondence with any of the professionals or the lay parties involved in the case.'
Is this guidance to be interpreted, as it was in this case, as meaning that experts in the same discipline should not talk to each other or compare notes when conducting their inquiries?
The answer, once again, is plainly 'no'. In the instant case, the psychologist SM was instructed to carry out work with the mother which, as it happened, was taking place in parallel with very similar work being carried out by the local authority social workers. SM felt constrained by the terms of her instructions (which followed exactly the form of the letter set out above) not to discuss her investigation with the social workers engaged in carrying out their parallel investigation. As a result, although she met them frequently in the course of her work, she did not discuss the case, or the mother's progress, with them, even though her professional judgment was that such discussions were both proper and necessary.
This is plainly not what the model letter intends and is not how it should be interpreted. It is not designed to restrict the freedom of expert witnesses to discuss the case with fellow professionals: to the contrary, that is what the whole practice of the Family Division is designed to encourage.
The critical word in the Children Act Advisory Committee's draft letter is, in my judgment, unrecorded. The mischief which the letter is designed to prevent is an informal discussion between experts which is either influential in or determinative of their views, and to which the parties to the proceedings (including perhaps other experts) do not have access.
The watchword of the Family Division is openness. Although the proceedings are confidential and held in chambers, nothing which affects the conduct of the proceedings must be done in secret. Everything must be above board. It is absurd in my view, and quite contrary to the spirit of the Children Act 1989, if experts are to feel constrained by their instructions from entering into discussions, informal or otherwise, which may assist in informing their opinion of the case. But if experts do have informal discussions about a case, perhaps because they share the same premises, or meet at a conference, or simply because they wish to inform each other's opinions, it is of course essential that they make a record of all such discussions (however brief) and, in their reports or otherwise, inform those instructing them that such discussions have taken place. It is equally important that they should state how (if at all) those discussions have influenced their thinking about the case.
For my part, therefore, I would delete the word informal from the passage in the draft I have cited. Furthermore, I would put the sentiments the other way round. I would say:
'It is expected that you will have meetings with the parents, children (where leave is given), social workers and the guardian ad litem. You are also, of course, at liberty to discuss the case with any of the other experts instructed if you feel that would assist you in writing your report. It is, however, essential both to your role as an independent expert and to the parties' perception of your independent status, that if you do have informal discussions or correspondence with any of the professionals or the lay parties involved in the case, you should make a note of all such discussions. You should also disclose the fact that you have had them when you write your report, and explain what influence, if any, such discussions have had upon your thinking and your conclusions.'
I also respectfully endorse the approach set out in the draft letter proposed by the Expert Witness Group in their information pack, which reads:
'Contact with others
You may wish to contact the solicitors of the other parties or the [parents] [carers] direct, to arrange meetings or for other practical reasons. Please feel free to do so. However, if in your contact with the solicitors you discuss any matter of relevance, please inform us promptly and let us have copies of any reports or information given to you. Please keep a careful record of all pertinent discussions with other experts or parties (my emphasis). For ease of reference here are the names, addresses and telephone numbers of the most important contact [add whenever two or more experts are being instructed: including in particular other expert[s] who have been instructed to consider the same issues]. You may be required to attend a meeting with the[se] other expert[s] in order to establish agreed facts, common findings and areas of disagreement.'
Question 5: Agreement as to the terms of letters of instructions to experts
In one of the interlocutory orders in this case, the district judge, whose grasp of the case and whose directions were for the most part impeccable, made the following direction:
'Any party instructing an expert witness shall try to agree the terms of the letter of instruction with all other parties and in any event shall serve a copy of the letter of instruction on all other parties with a list of the documents supplied to the expert.'
I am unhappy about a direction in this form being made routinely in child cases. It is clearly good practice for any letter of instruction to an expert to be disclosed and for the letter to list the documents supplied to the expert. Furthermore, where an expert is jointly instructed pursuant to an order of the court, the letter of instruction should be agreed by all those instructing the expert, and provisions built in to the order designed to ensure that the despatch of the letter is not delayed by difficulties in agreeing its terms. This is usually achieved by directing that the letter be agreed by a given date and that in default of agreement as to its terms the matter be relisted urgently for a short appointment before the judge or district judge who made the order.
Where, however, as here, one party is given leave to instruct an expert, I see no particular reason why that party should be required to agree the terms of the letter of instruction with the other parties. Such a direction runs the risk of delaying the despatch of the letter of instruction. Any defects in the letter can, in my judgment, be rectified when it is disclosed, and if the letter is defective, it will reflect adversely on its author.
Question 6: Experts' meetings
(a) Is it necessary in every case for the experts to meet? If so, does it have to be face to face?
(b) If a face-to-face meeting is required, should experts from different disciplines attend such a meeting?
(c) How should experts' meetings be conducted?
6(a) Face-to-face meetings and telephone conferencing
Experts' meetings are an important element in the process of preparation for a hearing. Nothing in what I say in this part of the judgment should detract either from that proposition, or from the proposition advanced in answer to question 4 above that experts should be free to talk to each other before writing their reports.
At the same time, the obvious needs to be stated. Simply because there are experts in the case does not mean that a pre-hearing face-to-face meeting of experts is necessary. A meeting of experts is only necessary if there is something for the experts to discuss. If, on paper, the experts are all agreed, and if there is nothing in their reports which requires elucidation or amplification, there is no need, in my judgment, for an experts' meeting.
A meeting of experts is usually required, either because it is necessary to attempt to define or limit areas of disagreement, or because there are points in the case which require elucidation. The first question, therefore, is whether or not in such a case it is necessary for the experts to meet face to face.
In difficult child cases the experts are often widely geographically located. In my judgment, it is unreasonable and uneconomic always to expect such experts to be able to find time to meet face to face. In many cases the experts can agree or limit the areas of disagreement by telephone or fax. In the instant case, the best results were achieved by a telephone conference attended by six of the seven medical experts on the evening of the second day of the hearing. That conference was called to answer specific questions posed by me. It was organised by the guardian ad litem and the solicitor instructed by the guardian. Both listened in and a shorthand writer was available to take a verbatim note.
Serious consideration should be given to telephone conferencing in every case, provided always that any such conference has a proper agenda, is called to answer specific questions and is competently chaired and minuted. This is a point to which I will return in answer to question 6(c) below.
6(b) Which experts should attend the meeting?
In many cases the essential issue is a factual one. In such cases, the expert evidence relevant to its elucidation is usually medical, and goes to causation and timing. In my judgment it is rarely helpful for an experts' meeting called to discuss issues of causation and timing to be attended by psychologists and psychiatrists. Considerable thought therefore needs to be given to the subject matter to be addressed by the particular experts' meeting, and the relevance of the disciplines of those invited to attend.
A global meeting of experts from different disciplines may sometimes be appropriate if all the issues in a case are up for discussion and resolution: such a situation is, however, in my experience, unusual.
Not only must great care be taken to ensure that experts' meetings are properly constituted to meet their particular objective; care must also be taken to ensure that if separate meetings of different disciplines do take place in the context of a given case, those meetings are complementary to each other and have the same objective, namely the resolution of the relevant issues in the case.
What happened in the instant case was that a meeting of the psychiatric/psychological disciplines took the case in a quite different direction from that which was pointed up by the medical evidence. It did so because it either ignored or gave insufficient weight to the findings to which the medical evidence clearly pointed. This overall lack of direction was, in my judgment, the responsibility of the lawyers and the guardian ad litem, who failed to focus on the relevant issues.
6(c): (i) The conduct of the meeting
If meetings of experts are to succeed in achieving their objective of eliminating or narrowing areas of disagreement, it is in my judgment essential that a strict intellectual discipline is applied to them. Meetings must be focused carefully and clearly on the issues which the experts are to address. Furthermore, the questions posed for the experts to answer must be clear and as straightforward as the subject matter allows.
The format of an experts' meeting must ultimately be a matter for those attending it. However, there are certain basic guidelines which should always, in my judgment, be observed. The first is that there must be a clear agenda for the meeting. Specific questions for the experts to answer, or propositions for the experts to address, must be drawn up and presented to the meeting. It is good practice for those questions to have been circulated in advance amongst both the parties' lawyers and the experts who are to attend the meeting.
In my experience, the experts' meetings which are most productive are those chaired by a lawyer. The obvious choice for this role is the solicitor instructed by the guardian ad litem. That solicitor should have a clear and unpartisan view of the issues in the case. It should thus normally be his or her responsibility to ensure that the agenda for the meeting addresses the issues in the case upon which agreement is being sought or in respect of which the areas of expert agreement and disagreement need to be defined.
All the lawyers for all of the parties need to direct their minds to the questions which are to be posed to the experts. The questions should be as simple and as straightforward as the subject matter allows. It is for the lawyers, and in particular in the preparation for a meeting of experts, for the solicitor instructed by the guardian ad litem, to distil the relevant issues in the case into a series of straightforward questions or propositions.
Ultimately, of course, if agreement cannot be reached as to the questions to be asked of the experts, the court will have to set the agenda. That is what had to happen in this case. It should, however, normally be quite unnecessary to involve the court in this process.
In Re M (Minors) (Care Proceedings: Child's Wishes) [1994] 1 FLR 749, 758 I stressed the need for careful co-operative planning between the parties' legal advisers to ensure experts' availability to give evidence at the hearing. In my judgment there is an equal need for co-operation in the preparation required for, and in the conduct of, experts' meetings. The parents' lawyers must, of course, have all their questions asked and answered, but this does not mean that any party should seek to obfuscate the issues by unnecessary or irrelevant questions. The questions posed to the experts must be carefully formulated to address the issues in the case. Questions should always aim to clarify, not obfuscate. The simpler the questions the better.
In the instant case, the fact that the injuries were non-accidental was established at an early stage. It was also clear virtually from the outset that there were two episodes of shaking. In my judgment, the efforts of the lawyers in these circumstances should have been directed to seeking to establish with the expert medical witnesses the ambit of the agreement or disagreement on the time-frame for the injuries and to narrow that time-frame as much as possible.
Counsel for the parents sought to persuade me that this was indeed their objective. It had plainly, however, not been achieved by the time I called the case in for its pre-trial review, and counsel for the mother argued that it had not been achieved by the date the hearing opened in February 1998. I do not wish to overburden this already lengthy judgment with a critique of the way in which the issue was approached by the lawyers in this case. Suffice it to say that it simply should not have been necessary for me, on the second day of the hearing, to fax to the seven medical witnesses what I believe were direct and straightforward questions, which produced very clear and simple answers. For ease of reference, the questions I posed and the answers I received are contained in an appendix to this judgment.
6(c) (ii): Minutes and statements of agreement and disagreement
It is of the greatest importance that a proper record is kept of all meetings of experts. This, in my experience, is best done by the guardian, although in complex cases is may be appropriate to employ a shorthand writer.
It is, however, even more important that the results of the meeting itself are distilled into a statement or similar document to which the experts can put their names and which thus acquires evidential standing.
Like every other aspect of procedural innovation, where experts' meetings are necessary, set up with care and conducted with intellectual rigour and discipline, they can save an enormous amount of court time and reduce the costs of a case substantially. Where, however, such meetings are unfocused or badly conducted, they can obfuscate rather than clarify issues, thereby lengthening a case and increasing costs.
In my judgment, therefore, the parties' lawyers and the guardian ad litem have a particular duty to ensure that such meetings are only called when necessary; that they are appropriately constituted, have clear and relevant agendas, are sensibly conducted and properly minuted; and that the outcome of such meetings is as clear as the subject matter allows.
Question 7
Where the medical evidence is unanimous as to causation and to timing, can the presence of any of the medical witnesses to give oral evidence be justified?
Once again, the answer is in the negative, with one possible exception, to which I shall come in a moment.
Contested care proceedings in the High Court and in the county court are extremely expensive. I would be very surprised if the costs of the instant case did not very substantially run into six figures. Social services resources are limited and finite: legal aid is under increasing pressure and scrutiny. All parties have a duty to conduct their cases with economy, provided always that the proper presentation of the case is not thereby prejudiced. Unnecessary proliferation of expert witnesses (as occurred in this case) is to be zealously guarded against. It is both time-consuming, extremely wasteful of financial resources and sets back the progress of the proceedings.
In this case, even though the medical experts were agreed, all seven doctors had been warned to appear to give evidence. When I began the pre-hearing review it was envisaged that all six psychologists and psychiatrists would give oral evidence. Such a state of affairs in a case of this nature is unacceptable. The court in particular has a very clear duty to guard against the unwarranted proliferation of expert evidence. In this case the court failed in that duty, as did the parties.
Where the expert medical evidence includes an opinion which has been obtained as a result of permission being given to a parent to obtain it, and where that opinion coincides with the expert evidence obtained by the other parties, I find it difficult to see any justification for oral evidence being called. There may, however, be situations in which the medical evidence is not in dispute between the doctors, but counsel or solicitors for parents who have not instructed an expert have instructions which do not permit agreement with the medical evidence. In these circumstances, and depending, of course, on the issue involved, it may be appropriate for leave to be given to adduce oral evidence from one of the medical witnesses as spokesperson for the rest.
The reason for this is, of course, that there must be a fair hearing, and parents who stand at risk of losing their children should not feel that they are being wrongly limited in the way they put their case. However, where the evidence commissioned by the parents confirms the consensus, I can see no justification for oral evidence being called in the ordinary case.
Question 8: The role of the guardian ad litem and the solicitor instructed by the guardian ad litem
It was a particular decision by the guardian ad litem which, in my judgment, set this case off on the wrong track. That was the decision to instruct Dr PW, an adult forensic psychiatrist, to make a psychiatric assessment of the father in the context of the first, factual limb of a split hearing. However, the responsibility for that decision cannot be laid at the door of the guardian alone. Responsibility for it must be shared by the solicitor for the guardian who should have advised the guardian against it, the other parties who agreed to it, and the court which sanctioned it.
A mistake such as this points up the importance of the relationship between guardians ad litem and the solicitors they instruct. It is very important, in my view, that such a relationship should be intellectually rigorous, as well as professionally compatible. Each must be able to criticise the other: each must be able to curb any excesses or irrelevancies in which the other may be tempted to indulge.
It is essential that solicitor and guardian work in partnership on every aspect of the case, including the definition of issues, the nature of the investigation to be undertaken, the need to instruct experts and the conclusions to be presented to the court in any interim or final report.
I have no doubt that in this case both the guardian ad litem and the solicitor instructed by the guardian are highly committed and competent professionals, who devoted an enormous amount of time and energy to the case. I am sure that both will be deeply upset at the criticisms which I feel bound to make of them. The decisions which they made were, as I have already stated, made in good faith. Moreover, the guardian and the solicitor instructed by the guardian are not solely responsible for what went wrong. Everybody, including the court, has made mistakes in this case.
Question 9: The role of the court in giving directions where the parties present a consent order
Orders were made by consent in this case which should not have been made and which, in my judgment, would not have been made if the court had exercised its own judgment properly and adopted throughout a rigorous and proactive stance.
No doubt where experienced and locally well-known and respected counsel come before the court with a consent order there may be a tendency, particularly if the list is busy, for the judge or district judge to assume that counsel and solicitors know what they are doing and to approve the order which they have agreed.
This case illustrates the dangers of that course. The court has the clear duty, irrespective of any agreement between counsel, to make the order which it deems appropriate in the particular circumstances of the case. The court should examine orders made by consent on directions appointments with care: the fact that the parties have agreed them, or that they are put forward by leading counsel, is no substitute for the exercise of a proactive and rigorously exercised judicial discretion.
Nothing in this judgment should, of course, be thought to contradict the proposition that it is desirable for the legal advisers to parties in care proceedings to discuss the case between themselves; to identify the issues in a case; to co-operate over the production and presentation of relevant evidence; and to agree orders for directions. However, the fact that an order for directions is agreed between the parties' legal advisers does not absolve the tribunal conducting the hearing from exercise its independent judgment on the directions proposed, and refusing to give them or altering them, where appropriate.
As is now well recognised, directions appointments are of critical importance in care cases. In particular, where hearing dates and expert evidence are concerned, the court's proactive duty described in Re G
(Minors) (Expert Witnesses) [1994] 2 FLR 291 and the subsequent cases is of particular importance in ensuring both that the court's duty under s 32 of the Children Act 1989 is fulfilled and that unnecessary and wasteful proliferation of expert evidence does not occur.
Question 10: Judicial continuity: continuity of counsel and solicitors
This case underlines the need for judicial continuity. Had one judge had the management of this case from the outset, I do not think it would have developed into the state in which I found it at the pre-hearing review on 8 January 1998.
Judicial continuity is, of course, an issue for the judiciary to address. For the High Court judge, whose life is divided between London and different circuit commitments, with periodic duties in the Civil and Criminal Divisions of the Court of Appeal it is, as the calendar is presently devised, virtually impossible to achieve any degree of continuity in any one case. For the circuit bench it is marginally easier, since circuit judges tend to remain largely in the same place or on the same circuit and are able to plan their lives a year ahead. Even so, the division of their time between family, crime and civil litigation also makes planning difficult.
Nonetheless, and despite the logistical difficulties which the concept of judicial continuity presents, its benefits for the individual case are clear. The specific benefit of judicial continuity once a particular judge has made a particular decision in a particular case is well recognised: see Re M (Minors) (Judicial Continuity) [1993] 1 FLR 903. In my judgment, the concept of judicial continuity applies equally to the interlocutory stages of a case.
In the instant case, as the history of the proceedings demonstrates, a praiseworthy interlocutory attempt by the father's advisers to put the case back on course was vitiated by their insistence that the issue as to the admissibility of the psychological and psychiatric evidence in the case should not be heard by the judge who was to conduct the final hearing.
As I shall demonstrate when I go through the history of the proceedings, the effect of making an application that evidence should be excluded to a judge other than the judge allocated to conduct the final hearing led, inevitably, to the judge who tried the issue deciding, correctly, that the evidence was technically admissible, and that its relevance had to be a matter for the judge conducting the final hearing.
Had I been in the position of the judge who tried that particular issue on a preliminary basis, I feel confident that I would have decided it in the same way. I would not have felt able to fetter the discretion of the judge allocated to conduct the final hearing to admit the evidence if he or she thought it relevant.
As the judge having conduct of the final hearing, however, I had no hesitation in excluding it.
In my judgment, therefore, wherever possible, one judge should preside over all the interlocutory stages of a case and him or herself take the final hearing. Where, however, this is impossible, two things should happen. First, the same district judge or care judge should, wherever possible, take all the directions appointments before passing the case over to the judge who is to conduct the final hearing. In this context discussions between district judges and circuit judges who are to take different directions appointments in the same case are to be encouraged, as are discussions between district and circuit judges or High Court judges who are to take the final hearing, particularly if they enable the latter to call the case in for directions as and when appropriate.
Secondly, whatever has happened before, the pre-hearing review must always be before the judge who is to take the hearing, as should any interlocutory hearing required as to evidential or timetabling issues.
There also needs, in my judgment, to be greater consistency between courts on the directions to be given in care cases. Practice Directions must be universally honoured in the observance, not the breach, and practice judgments followed. Only, in my judgment, if there is both judicial continuity and consistency of practice will it be possible to put the provisions of ss 11 and 32 of the Children Act 1989 properly into practice.
This case also demonstrates the need for continuity of counsel and solicitors advising the various parties. Counsel for the parents who appeared before me told me that they were only instructed at a late stage in the case, when, as the dates show, it was already off track. The hearing before me was competently conducted by the Bar. Had there been continuity of counsel and judicial continuity, it may have been that the case would not have got into the sorry state in which I found it.
Question 11
Given that the evidence demonstrated that one or both of CB's parents (and nobody else) was responsible for her injuries, and that those injuries plainly represented significant harm, was it necessary to embark at all on the factual investigation as to whether it could be shown to be one parent or the other?
Against the background I have described, it might be said: what does it matter which of the parents did it? If both deny it, and each could have done it, the simple fact remains that on two occasions this child suffered life-threatening injuries in the care of her parents. Neither had given the court on paper any insight into what happened: one plainly must know what occurred. Whichever did it, the other plainly failed to protect. On the argument I have already advanced CB clearly suffered significant harm in the care of her parents and there was a likelihood that JB would suffer significant harm: the threshold criteria are thus met in relation to both children.
That is a seductive approach, and there are cases in which an investigation into the identity of the perpetrator of injuries as between mother and father will not be either necessary or appropriate. I do not, however, think it is the right approach on the facts of this case. Whilst an inability to decide which parent is responsible may be the outcome of the inquiry, an inquiry into the facts, in a attempt to establish which is responsible, was necessary.
Had the facts shown on the balance of probabilities that the father and not the mother was responsible, the court would have needed to look carefully at her role to see (a) if there was a failure by her to protect CB from injury, and (b) if so, how serious it was. If the evidence had been sufficient for a finding of fact that there was a serious failure to protect, the court would then have needed to make an assessment of the risk involved in placing both children in the mother's care. This is a different situation from that which arises from an inability to decide which parent was responsible, and requires a different approach.
I was therefore satisfied that the inquiry needed to be undertaken. But, as I have already made clear, I regarded it essentially as a factual investigation.
[The remainder of the judgment comprises a detailed analysis of the interlocutory stages of the case and is not reported apart from the following section which deals with the desirability of any substantive application as to the admissibility of evidence being heard before the judge who is to try the case. For the purposes of this part of the judgment it is necessary to understand that Dr PW is a consultant forensic psychiatrist; EW is a consultant forensic psychologist; CH is a chartered clinical psychologist; SM is a chartered psychologist; Dr Daly is a consultant adolescent psychiatrist; RH is a consultant clinical psychologist and SM is a chartered psychologist.]
The hearing before Stuart-White J on 10 and 11 November 1997
Following the abortive hearing which should have taken place before Sumner J, the father's advisers sought to put the case back on course. They did so by seeking directions: (1) to clarify the issues in contention; (2) for the determination of the categories of admissible evidence in respect of findings of fact in support of the threshold criteria; (3) for leave to instruct another psychiatrist on behalf of the father; (4) for leave for a clinical psychologist to consider the profile of the mother; and (5) to determine the listing of the case.
Whilst this move by the father's lawyers is to be applauded, (a) items (3) and (4) of the relief they sought never have arisen, and (b) that such an appointment was deemed necessary demonstrates the sad and wholly unnecessary muddle into which the case had been allowed to drift.
Even more unfortunately, however, in my judgment, the father's well-intentioned summons actually made matters worse for one very simple reason. This was that it was not listed before the judge who was due to take the final hearing: indeed, the father's lawyers expressly submitted in writing that it should not be so listed. This, in my judgment, was a serious mistake.
The father, the local authority, the mother and the guardian ad litem all put in detailed skeleton arguments for this summons for directions, which took place before Stuart-White J on 10 and 11 November 1997. Both the parents were represented by leading counsel.
The father sought to persuade the judge that the evidence of Dr PW and EW and CH was inadmissible for the purposes of determining the finding of fact as to perpetrator and should only be considered as potentially relevant after such a determination, at the disposal stage. Alternatively, the father argued that if technically admissible it should be excluded because it was of minimal weight. The father argued that it was unjust to introduce evidence of propensity in any determination of past events. Counsel's skeleton argument summarised the matter thus:
'If the court is unable to make a finding of fact by reference to the medical evidence of the timing of injuries and the evidence of the witnesses as to which individual had the care of CB at material times, then it would be manifestly unjust to rely on this category of evidence to bridge the gap to reach the requisite standard of proof.'
As to the psychological evidence in relation to the mother which concluded that she was unlikely to have inflicted the injuries, counsel for the father argued as follows:
'Although Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195 establishes that expert evidence may be admissible, if relevant, in respect of the ultimate issue, it is submitted that the underlying rationale for the use of expert evidence should be kept firmly in focus viz to assist the court in drawing inferences and conclusions where the tribunal of fact does not possess the necessary expertise to carry out that task …
[SM's evidence] … is in essence evidence of credibility. It is submitted that it is inadmissible not because it goes to some of the ultimate issues in the case (viz did the mother inflict one or other of the injuries) but because it is irrelevant and unnecessary.
It is irrelevant and unnecessary because the court has the expertise, experience and knowledge to assess credibility.'
Counsel for the local authority, in reliance upon Re M and R (Child Abuse: Evidence), submitted that the evidence of SM was admissible and that the court was not precluded, in determining whether the threshold criteria are met in respect of each parent, from giving such weight to expert psychiatric or psychological evidence as it deems fit. The mother, through her counsel, took the same position. They submitted that the court would not only be assisted by the evidence 'in resolving issues of identity between the mother and the father but, given the mother's limited IQ and particular characteristics, the court will also be assisted by psychological [evidence] in evaluating mother's evidence in more general terms'. They also submitted that there was no discretionary power to exclude evidence which was admissible.
The guardian ad litem took the same position. The evidence was admissible: its weight was a matter for the judge conducting the final hearing. Quite properly, the guardian ad litem also submitted:
'The guardian's overriding concern is that the children have now been in care for a year and that there is no more certainty about their future now than there was then. There appears to be a risk that the assembling of evidence may become unwieldy and work against the speed with which it is essential the matter be resolved in the interests of the children. The guardian invites the court to consider the imposition of the strictest time-limits upon the preparation of such further evidence as any party seeks to adduce.'
Whilst the latter submission is plainly right, it came much too late. Moreover, it overlooks the fact that it was the guardian who, as I have explained, was primarily responsible for setting the case off in the wrong direction by her wish to instruct Dr PW. The consequences which are so clearly recognised in the passage from counsel's skeleton argument are the direct result of that mistake.
Stuart White J heard argument over 2 days. Unfortunately, I do not have a transcript of his judgment: all I have is counsel's note. In my judgment, Stuart-White J was placed in an extremely difficult position. He himself clearly recognised the difficulty. He had been asked to hear the summons precisely because he was not the judge allocated to conduct the final hearing. The thinking behind the choice of a judge who was not going to be the judge allocated to conduct the final hearing seems to have been that if the psychiatric/psychological evidence was excluded, there was no danger of the judge who had read it and excluded it being the judge who was to conduct the final hearing and thus none the less being influenced by it in the subsequent hearing.
In my judgment, this thinking was plainly wrong for several reasons. First, judges in family proceedings frequently read a mass of material which turns out to be irrelevant or incapable of proof without rendering themselves incapable of hearing the case fairly.
More importantly, however, the selection of a judge who was not to take the final hearing defeated the whole object of the father's summons. Precisely because he was not going to be the judge allocated to conduct the final hearing, Stuart-White J inevitably felt inhibited about excluding evidence which might (might being the operative word) be of assistance to the judge conducting the final hearing.
Stuart-White J, according to the note of his judgment, described it as 'rather unfortunate as well as unnecessary' that the application had been made to a judge other than the judge allocated to conduct the final hearing. I entirely agree with him, and had I been in his position I anticipate that I would have taken the same course that he took. This was that, since he was not the judge allocated to conduct the final hearing, he could not say what evidence might or might not in the event prove to be relevant. Since, prima facie, the evidence on the authority of Re M and R (Child Abuse: Evidence) was, if relevant, otherwise technically admissible, it went to weight rather than admissibility and it was not for him to shut it out. Only the judge conducting the final hearing could do that. It had to be a matter for the judge conducting the final hearing to decide what evidence was relevant and what should be admitted.
At the same time, however, Stuart-White J rightly made it clear that nothing in the judgment which he gave should be taken as discouraging judges from controlling proliferation of expert evidence which was best done by careful consideration of applications for leave to adduce such evidence.
The inevitable consequence of Stuart-White J's decision was that the father obtained his leave to instruct Dr Daly whose task (inter alia) was to consider the reports of Dr PW and the psychometric testing by EW on both the mother and the father. The father was also given leave to release the papers to CH to consider and report on the validity of the psychometric and intelligence testing on the mother; the practice adopted by RH and SM in their approach to the assessment of the mother and to consider the validity of their findings. There was also, by consent, an order for discovery, which has to be cited if only to demonstrate how divorced from the real issues in the case the proceedings had now become. It reads:
'There shall be disclosure of the following material:
(1) All notes of Dr PW's interviews with the father in 1991 and 1997 and with the mother in 1997.
(2) All draft reports by Dr PW about the father and the mother insofar as they differ from his final reports.
(3) All other documentary records or records of conversations with third parties which comprise material on which Dr PW has formed his opinions in respect of the father.
(3a) All psychometric and intelligence tests actually administered and completed by the mother.
(4) All working notes and any other documentary records which comprise material on which RH has formed her opinions in respect of the mother.
(5) All working notes and any other documentary records which comprise material on which SM has formed her opinions in respect of the mother.
(6) All psychiatric notes concerning the mother referred to in the report of RH.
(7) All social services notes which relate to child care concerns and incidents of aggression involving the mother insofar as they are not already disclosed.
(8) All social services notes which relate to child care matters and incidents of aggression involving the father, insofar as they are not already disclosed.'
The guardian ad litem was given leave to obtain and file a report from EW dealing with his involvement in the case. There was also a direction that the case was to be listed in the week commencing 15 December 1997 before the judge allocated to conduct the final hearing for a ruling on a preliminary point of law. This was the question of the threshold criteria and assessment of risk on the basis that the local authority was unable to identify either parent as the perpetrator of the injuries. In the event, however, this direction was not implemented.
The most positive effect of Stuart-White J's order was that he fixed the hearing to commence on 2 February 1998 to be tried by a stand-by judge.
MARY BRYN DAVIES
Barrister
